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.