Saturday, March 7, 2009

Why does the State care about marriage anyway?

Stand To Reason Blog asserts what they consider the essential Rational Basis for the State to oppose gay marriage:

...marriage isn't an issue of fairness. It's not a civil right. It's necessarily discriminatory because it favors the kinds of relationships that the state has in interest in. Marriage is unique in that it produces the next generation of society, an interest all cultures must favor. Marriage also provides the kind of stability that not only protects children. Without that kind of stability when the family breaks down, the state has all sorts of new burden that affect everyone, including increased crime and poverty that social programs are then needed to fill the gaps.

The state obviously has an interest in traditional marriage.

Obviously? Let's look a little closer:

  1. The California Supreme Court has applied the standard of "strict scrutiny" in the appelate review in re Marriage, not a "rational basis" standard, so even if the above were true, it is not sufficient cause to oppose gay marriage. The State must clearly show not that children might be harmed but that in statistically significant numbers they will be harmed. No such evidence has been accepted by any court to my knowledge, and most certainly not the California Supreme Court.

  2. None of the three branches of California State government have made the above argument, nor did Proposition 8 make it (having after all only 14 words in it). To be relevant in a legal context, this argument must be advanced through Executive Order, Legislative Action, Judicial Finding, or Popular Initiative. Blogging provides no legal standing.

  3. The claim is facially untrue. Marriage does not produce the next generation, sexual reproduction does. This not only does not need marriage, it will soon not even need parents. A fertilized egg could be incubated, or a person cloned.

  4. The claim is substantively untrue: "About half the babies born in Sweden are born to unwed mothers, though very few are born to teenagers....Despite all these “problems,” the Swedish birth rate has increased steadily since 1970 (Home sweet home, 1995), and children rarely suffer....Swedish children showed the highest educational performance of the four groups in the study, the lowest percentage in poverty, and nearly the lowest child abuse death rate."

  5. The state obviously has an interest in traditional marriage.

    No. The state might have an interest in traditional child rearing, in which case it must more narrowly tailor its support, allowing binding marriage proposals only to a woman who conceives (or declares her intention to conceive) a child, with whoever she thinks can best co-parent with her. This marriage proposal would automatically become a marriage contract upon successful live birth (and be retroactively nullified upon failure to achieve this) and would automatically dissolve when there are no children of minority age. Spousal cohabitation (unlike the parent-child relationship) would be a matter purely of contract law, with default nuptial obligations when no prenuptial agreement is in place. In fact, the child would logically even have standing to sue both parents for breach of contract in the case of divorce or family strife. The State obviously has no business involving itself so intimately in the intimate lives of adult relationships, and certainly not in an unequal and discriminatory fashion.

Family law is very messy business, and the courts continually seek (and are legislatively encouraged to seek) advice and guidance on child welfare issues from experts to form a time-varying consensus understanding to inform their legal judgment. There are already ample sanctions against irresponsible parents, without government intrusion into the private lives of consenting adults.

There is a meme, relentlessly promoted by anti-same-sex-marriage advocates, that the State has a right—and duty— to care about marriage. It does not. The State has a duty only to children, not to parents, and though it may permissibly embed what is clearly an instinctive bipartite pair bonding (common among most all higher-order animals) in contract (spousal) and family (child) law, it has no right to restrict this institution to opposite-sex couples. Many religious arguments against same-sex marriage have been advanced, but the First Amendment forbids consideration of these in our civic framework.

No wonder this tired argument never made it out of the sermons and blog pages and into a legal finding. Not the California Supreme Court, not the Assembly or Senate, not even our Republican Governor has shown any more sympathy for this argument than I have.


John Evo said...

Fine deconstruction of the Stand To Reason assertion. (Lordy I despise those who co-opt the word "reason", when they have nary a clue how to use it).

Another point on "traditional marriage": should we prevent the marriage of couples unable to spawn for reason other than "same sex"? I'm thinking of older couples, but it could apply equally to younger ones in which one or the other partner has some physiological dysfunction.

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