As we approach election day here in California, I think it instructive to understand what legitimate interests the state (any state, not just California) has in promoting and sanctioning man/woman marriage over genderless marriage.
One of the most significant cases outlining the state’s interests was Hernandez v Robles 855 N.E.2d 1 (2006), where the New York Supreme Court soundly rejected genderless marriage in New York. I look to New York, because their supreme court is well established and well respected–and frankly because the California State Supreme Court got it wrong.
The Hernandez Court began by listing some of the 316 benefits of marriage identified in that particular case:
It is undisputed that the benefits of marriage are many. The diligence of counsel has identified 316 such benefits in New York law, of which it is enough to summarize some of the most important: Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions. Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State.
In order to satisfy constitutional standards the state must have sufficient legal and societal reasons to make certain distinctions in the law. The court put it this way:
The critical question is whether a rational legislature could decide that these benefits should be given to members of opposite- sex couples, but not same-sex couples. The question is not, we emphasize, whether the Legislature must or should continue to limit marriage in this way; of course the Legislature may (subject to the effect of the federal Defense of Marriage Act [Pub. L. 104–199, 110 U.S. Stat. 2419] ) extend marriage or some or all of its benefits to same-sex couples. We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.
The court concluded there were at least two rational grounds for New York, and presumably any state, to support certain limitations on marriage, i.e., that it should be limited to the man/woman relationship, rather than a wholesale re-definition of marriage to a genderless institution.
The first reason enunciated by the court centered on the welfare of children:
First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.
What the proponents of genderless marriage emphasize are perceived rights of adults, and they completely ignore the rights and the welfare of children. This is a critical point, the court makes. It is in fact very important to promote stability and to avoid instability in man/woman relationships. Why? Because the laws of Nature, and Nature’s God have decreed that hetrosexual intercourse has a natural tendency to lead to the birth of children. Homosexual intercourse does not. And, as the court wryly notes, this fact will likely continue in perpetuity.
Further expanding on this point, the court noted:
The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement in the form of marriage and its attendant benefits to opposite-sex couples who make a solemn, long-term commitment to each other.
It is a fact that all too often hetrosexual relationships are casual or temporary. Therefore, to create more stability and permanence in these relationships, the state offers marriage as an inducement, with its benefits to promote and encourage solemn–long term commitments to each other. Why? For the benefit of the children–not the adults–though undoubtedly the adults too will benefit.
The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.
No doubt, same-sex couples might adopt or artificially inseminate; but, there is no way they will become pregnant by accident or impulse. So, what? Well, as the court notes, this is another reason why marriage’s rationale doesn’t apply equally to same sex couples.
The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.
This is an interesting analysis by the court: that opposite sex couples present a greater danger to children in terms of unstable homes, without the benefits of marriage; therefore, it is more reasonable to afford the status of marriage to opposite sex couples, and not those of same-sex couples. Personally, I think this rationale is probably one of the weakest the court offers of why the legislature could restrict marriage to the man/woman relationship. But, the court did offer better rationales:
There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.
Yes, back to the children, and their rights. It is better that children grow up with both a mother and a father, where possible. Children do benefit from having living models in their home both a man and a woman for the parental role models. It also happens to coincide with what living prophets, seers, and revelators have taught. I think the court gets it right here. As a general rule, it is just better for children to grow up with parents of both sexes. It is, after all what nature appears to have intended as well.
I think the New York Supreme Court’s analysis of this very same question is a better legal result, better reasoned, and preserves the traditional definition and roles of men and women in marriage. The New York Supreme Court also recognized one of the most important limitations on its own power, that the California Supreme Court failed either to recognize or accept: Any change to the definintion of marriage, should come from the legislature–not the bench. And, in California, that would include the direct voice of the people:
Our conclusion that there is a rational basis for limiting marriage to opposite-sex couples leads us to hold that that limitation is valid under the New York Due Process and Equal Protection clauses, and that any expansion of the traditional definition of marriage should come from the Legislature.
Such a drastic and dramatic redefinition of marriage and of society is better dealt with at the legislative level though the people’s representatives–not unelected and unnacountable justices, legislation from the bench.
In short, there are two overriding interests (with several subsets of those two major interests) the court outlined the state has in preserving marriage between a man and a woman:
1. Traditional man/woman marriage promotes stability in hetrosexual relationships, which inures to the benefit of the children;
2. Hetrosexual intercourse has a natural tendency to lead to the birth of children;
3. Homosexual intercourse does not;
4. Therefore, it makes more sense to afford marriage status to hetrosexual couples, not homosexual couples;
5. Other things being equal, it is better for children to grow up with a man role model as a father, and a woman role model as a mother.
There are likely other interests the state might have. But, these are the two major interests (and their subsets) outlined by New York’s Supreme Court that the state may assert in preserving marriage between men and women. They are good, sound, interests, supported with sound, common sense, legal reasoning.
Finally, it is important to point out, that all the benefits of marriage, outlined by the New York Supreme Court were afforded to registered domestic partners in California, long before the State Supreme Court struck down as unconstitutional California’s statutes defining marriage between man and a woman. There is much hype by the No on 8 folks that Proposition 8 takes away rights. It does not. Furthremore, the state and societal interests justify maintaing marriage in California between a man and a woman.
October 11, 2008 at 10:29 pm
I think that you make a plausible argument about a state’s interest in marriage. I have significant problems with the Hernandez decision, but I think that applying it to California misses the point.
California’s domestic partnership law made domestic partnerships equal in every respect to marriage except that they were called something different. None of these arguments about restricting marriage to opposite-sex couples apply to the California situation because California did not restrict any of the functional rights to opposite-sex couples. The state’s motive is therefore obviously not any of the legitimate interests that you outline because it is wildly underinclusive. While a law can, under rational basis scrutiny, be over- or underinclusive, when it is so over- or underinclusive that all possible legitimate governmental interests are shown to be pretense, it fails rational basis scrutiny. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), quoted in Romer v. Evans, 517 U.S. 620 (1996).
I personally think that some sort of heightened scrutiny for sexual orientation is justified (although I generally think that the current system of tiered scrutiny is problematic), but I’m willing to defend the Marriage Cases on real rational basis scrutiny. For the life of me, I can’t think of another reason to restrict the word “marriage” to opposite sex couples other than the one I articulated in the previous thread: to create a symbol that “married” couples are of more worth to the state than “domestically partnered” couples.
October 12, 2008 at 12:20 am
If I may attempt to sum up the previous post, to see if I understand correctly…
Since all of the rights granted to heterosexual married couples in the state of California have also been granted to homosexual couples who are “civilly united”, what the proponents of Prop 8 in California are doing does not consist of protecting the actual institution of marriage, but is merely an attempt to protect the definition of a word in the dictionary.
It would therefore seem to be equally valid to put a proposition before the voters of California that would restrict the use of the word “woman” to refer only to “natural” female human beings, while prohibiting any and all use of the same word to refer to transgendered persons who were born male, but who underwent the necessary procedures to become female, regardless of their altered appearance.
I’m unaware of any policies the Church might have regarding transgendered individuals. For example, could a transgendered woman who has become male be ordained to the Priesthood? I suspect the answer is no, but I don’t know this for certain.
October 12, 2008 at 3:56 am
Guy – this is a helpful and thorough analysis. Thanks for putting it together!
My only comment is on your section pointing out that marriage lends stability to relationships, which undoubtedly benefits children who are born (or brought) into that relationship.
Not to quibble too much with the court’s (or your) analysis, but why – meaning what are the underlying reasons – whereby the state justifies denying children of homosexual parents the stability that marriage singularly bestows upon two adults? Hundreds of thousands (millions?) of children are currently living with parents of the same gender.
Yours and the NY court’s argument that marriage is for children is precisely the reason to support single gender marriage.
Also, I think Nate pointed to the real problem here: anti-discrimination laws. The cat is already out of the bag. Prop 8 will not affect these laws.
October 12, 2008 at 8:41 am
This is an interesting analysis by the court: that opposite sex couples present a greater danger to children in terms of unstable homes, without the benefits of marriage; therefore, it is more reasonable to afford the status of marriage to opposite sex couples, and not those of same-sex couples.
I’m glad you see this argument as “weak,” Guy. While the argument attempts to give a reason for legal recognition of heterosexual marriage, it does not give any reason why committed same-sex partners should not enjoy legal marriage recognition. While this particular given reason for heterosexual marriage may not completely apply to homosexual couples, the New York argument ignores that there may be other compelling reasons for legal recognition of marriage equality.
This argument further ignores the present existence of well over a million children in the United States, who are currently raised by parents of the same biological sex–with or without the benefits of legal marriage equality. Why is the New York court so completely disinterested in promoting the stability of these children’s families?
The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.
This argument fails to address how legal marriage equality would negatively impact the number of children being raised by “both a mother and a father.” In fact, this argument is a complete non sequitor, considering that the court already noted that homosexual intercourse does not result in the conception of children. The court fails to address how legal marriage of a same-sex couple in any way reduces the number of children being raised by “both a mother and a father.”
The court could have made two such claims. First, the court could have said that legal recognition of marriage equality would cause heterosexual, married parents to suddenly “turn gay” and leave the family relationship. This argument, of course, would subject the court to open ridicule, even from some of the most ardent Prop 8 supporters.
Second, the court could have claimed that legal recognition of marriage equality would make homosexuals less likely to marry heterosexually (what Dallin Oaks called “under false pretenses,” by the way), thus creating fewer male-female couples for breeding and childrearing purposes. No rational person could think that this was a valid argument, given the pain and upheaval caused when a homosexual person can no longer keep up the charade of a heterosexual marriage.
To put it simply, there were really only two ways for the court to support their “both a mother and a father” argument as a reason to deny marriage equality, and since both of those ways would be patently ludicrous, they remained silent, relying on the emotion of “save the children!”
Mind you, the court could point to adoption by same-sex partners as an impact on children being raised by “both a mother and a father,” because adoption by same-sex parents already exists in many states, with or without legal marriage equality. The court’s ruling would have no effect on adoption by same-sex parents.
October 12, 2008 at 11:12 am
What part of “secure and protect our rights (to life, liberty, and pursuit of happiness)” does having the heavy hand of government decide the definition of marriage perform?
Do gays have the right to pursue happiness? Should we (as believers in ‘war-in-heaven’ agency) use the violence of government?
Can you show me how the ‘marriage’ of a gay couple will harm your rights? If not, then perhaps you are on the wrong side.
October 12, 2008 at 11:21 am
Mark N.
Adults who undergo gender change surgeries are excommunicated and cannot join the church.
October 12, 2008 at 1:26 pm
NOYMDB,
That isn’t correct–the Church’s policy is as follows:
October 12, 2008 at 7:28 pm
Here’s an observation nobody else seems to have made. Where is THOMAS S. MONSON’s name on this list of donors? Why hasn’t MONSON put any of his own cash on the line, after directing all LDS members to do so? In fact, you can’t find any of the LDS First Presidency or Quorum of the Twelve listed as donors, whether for or against Proposition 8. The Los Angeles Times has provided a helpful search engine, including not only large donations, but small ones down to $100. Here’s a link to that search engine: http://www.latimes.com/news/local/la-metro-prop-8,0,2463893.htmlstory
Try it for yourself! To make it simple, run a search by just entering “UT” in the state field, and you’ll get a full listing of donors from Utah, both for and against Proposition 8. Not one member of the LDS First Presidency or Quorum of the Twelve appear. If your money needs to be sacrificed, why not theirs? It’s not as if they’re trying to avoid appearing to take a particular side on the issue.
October 12, 2008 at 9:47 pm
Guy said, “…It is, after all what nature appears to have intended as well [that children should grow up with a mother and a father].”
You believe that “nature” has intentions?
Who is this “nature” that you believe has intentions?
Can’t one simply conclude that God made the earth diverse and multifaceted (I for one think it makes it more interesting and beautiful), but He still wants us to appreciate and love His creation, including diversity?
October 13, 2008 at 12:22 pm
People will always want to have children. My wife or your wife will not end up barren because my brother married his boyfriend.
As someone else noted, this is not about protecting marriage, civil union is simply marriage without the “m” word.
This is about a definition. A definition which fails on its face. Without defining what is “man” and what is “woman” proposition 8 is and WILL become a joke and laughing stock of California.
If the proposition does not exclude persons who have gotten sex changes, then what is the point of “one man one woman”?
All arguments for heterosexual marriage only are completely lost if heterosexual marriage definition allows for person who have undergone a sex change to be married!
October 16, 2008 at 8:45 am
Nick, it is because our tithing pays their salaries. So to donate would be to donate tax-exempt monies and risk litigation.
Reminds me of the great parenting idiom: “Do as I say, not as I do…”
October 21, 2008 at 1:58 am
Guy, tried to find an email address for you…thought you might be interested in this if you haven’t yet seen it.
Thanks for all you are doing here, btw.