The Ambiguous Quest for Marriage Equality

by Adam J. MacLeod, The Public Discourse, June 25, 2015

Do proponents of marriage equality want marriage equality or not? The rhetoric of marriage equality does not match the reality. Only if marriage is the union of a man and a woman does it make any sense to have paternity presumed without consent, incest and polygamy prohibited, and custody bestowed upon biological or presumed parents except for cause.

As the US Supreme Court appears poised to require all states to extend legal marriage recognition to same-sex couples, it is instructive to note the ways in which marriage and “same-sex marriage” remain distinctly unequal in those states that already have extended recognition to same-sex couples. True “marriage equality” has not been achieved in those states—and it never will be, as long as states maintain an interest in enforcing the duties that parents owe to their children.

Even states that issue marriage licenses to same-sex couples continue to distinguish between marriage and same-sex “marriage” for many purposes. Consider Massachusetts, which began issuing marriage licenses to same-sex couples more than a decade ago, after its high court declared irrational the link between marriage and child-rearing. Massachusetts law continues to presume that “a man” who is married to the biological mother of a child is the child’s “father.”

To a married man and woman, this provision applies rather straightforwardly. The husband is legally presumed to be the child’s father, even if he is not actually the biological father. But to a man-man “marriage,” the provision can have no application at all. If one of the men is unfaithful and impregnates a woman, then a presumption of paternity cannot perform any meaningful function.

Massachusetts courts have ruled that, in a woman-woman “marriage,” the non-biological mother is presumed to be the second parent if both the biological father and the non-biological mother consent, as in the case where the biological mother is artificially inseminated with the second woman’s knowledge. But what if the father or the second woman does not consent? And where consent is obtained, how effective is the fiction in the long term? It cannot survive the child’s attaining the age of understanding.

Other incidents of marriage can be applied to same-sex couples only arbitrarily. New York’s high court recently interpreted New York’s incest prohibition in light of its two rational bases: avoiding genetic defects in potential biological offspring and expressing New York’s moral disapproval of incest. The first basis can have no application to a same-sex couple, and the second flies in the face of the US Supreme Court’s recent insistence that moral disapproval is not a valid justification for laws concerning sexually intimate relations.

So, Massachusetts and New York continue to treat marriage and same-sex coupling differently. Despite eliminating from law the fundamental predicate that every marriage involves a man and a woman and binds the father and the mother of any children that result from the union, the courts and lawmakers of Massachusetts and New York have left in place incidents of marriage that presuppose this predicate. Yet proponents of marriage equality are not flooding the Massachusetts or New York courts with lawsuits to eliminate those incidents.

This raises a question: What do proponents of “marriage equality” want? If they are asking for governments to make marriage and same-sex couples the same in law, then they are asking for governments to eliminate the incidents of marriage that connect children to their natural parents. If same-sex “marriage” proponents are not asking governments to eliminate those legal securities for children, then they are not asking for full marriage equality.

The Fundamental Law of Marriage

It is not difficult to perceive why Massachusetts and New York distinguish between marriage and same-sex “marriage.” Marriage is the only institution known to connect the well-being of children to the natural rights and duties of parents, which exist prior to positive laws. Marriage strengthens the ties between father and mother and between the pair and their children.

The rights and duties of marriage are not created but rather declared and reinforced by our laws. As I argue elsewhere, they precede and are foundational to our positive laws. In Anglo-American jurisprudence, marriage is a fundamental right because the rights and duties of marriage are part of our fundamental law.

Positive laws—constitutions and statutes—cannot create or destroy these rights and duties. They can only affirm and support the natural rights and duties of marriage and parentage—or not. Many people, not just those with same-sex attractions, would prefer that they do not. Legal protections for the natural rights and duties of the biological family are inconvenient for adults who want the law to affirm their sexual attractions and choices, whether those attractions are homosexual or heterosexual. Protections for children in marriage law eroded dramatically in the no-fault divorce revolution.

Yet as others have explained, it is one thing to eliminate legal protections for children that are grounded in marriage. It is quite another to eliminate the predicate that provides the fundamental rationale for marital norms. Only if marriage is the union of a man and a woman does it make any sense to have paternity presumed without consent, incest and polygamy prohibited, and custody bestowed on biological or presumed parents except for cause.

If it is irrational for states to distinguish in law between marriage and same-sex couplings, then it is also irrational for states to treat marriage as an institution designed to secure the rights of children. Consider the equal protection problem now at the heart of the presumption of paternity in a state such as Massachusetts. A man married to a woman is presumed to be the father of her child, even if he did not father the child. Even if he does not consent, that man is held legally responsible for the child’s well-being. The law imposes on him a legal status that it does not impose on a man who is married to a man, and on different terms than the analogous status placed on a woman married to a woman.

So, the logic of “marriage equality” requires states to eliminate those legal securities for children that are grounded in marriage. In inventing the first right to same-sex “marriage,” the high court of Massachusetts recognized this. In its Goodridge decision, the court declared that the law of “the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual.” Among these various ways of begetting and rearing children, Massachusetts law must be indifferent.

On this foundation, the court confidently knocked over a straw man, asserting that “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.” Because marriage has no inherent connection to children, it is irrational for positive law to give a special status to natural marriage as against same-sex relations.

The Costs of Pursuing Marriage Equality

The reality of same-sex “marriage” has not yet caught up with the logic; for now, Massachusetts still distinguishes between real marriage and same-sex “marriage.” But even if some of the incidents securing the rights and duties of parents and their children remain in place, the inchoate effort to achieve marriage equality harms the culture of marriage and thereby harms the children whom marriage is supposed to protect, particularly the least well-off.

These are costs of the as-yet-unsuccessful effort to make marriage and same-sex couplings the same in law. The law teaches, and people are prone to learn from it. The law of same-sex “marriage” is that man and woman, husband and wife, father and mother, are fungible. A marriage can be a marriage without one or the other, according to the desires of the adults involved. Thus, the law of states such as Massachusetts reinforces a culture that devalues fathers and mothers as people with distinct duties toward their children.

If, as several courts and nearly all of the media have concluded, it is not rational to believe that mother and father are each uniquely important, then it should not surprise us if people stop admitting that they believe that mother and father are important, or stop actually believing that mother and father are important, or stop encouraging each other to act as though mother and father are important. When marriage and birth certificates no longer designate “husband” and “wife,” “father” and “mother,” people might well internalize the message that the state does not consider these designations important.

Those who resist this message face other costs. In its ambiguous quest for marriage equality, Massachusetts has forced Catholic Charities to stop placing children in adoptions. A Christian college that distinguishes between marriage and non-marriage has been threatened with loss of accreditation. The Sisters of St. Joseph of Boston, an order of nuns who operate a parochial school, have been subjected to proceedings before the Massachusetts Commission Against Discrimination for acting on their religious conviction that marriage is a man-woman union. Anyone who chooses to speak or act consistently with the reality of marriage is being excluded from public life.

So which will it be?

Some people speculate that a majority of the Supreme Court justices are determined to force this social experiment on all fifty states, whatever the costs. Well, what do they have in mind? Do they plan to be logically consistent and thoroughgoing about this? Will they eliminate the rights of children to have legal connections to their biological parents? Or do they plan to leave in place parallel and distinct marriage institutions, as Massachusetts and other same-sex “marriage” states have done so far, one for real marriages and one for same-sex “marriages,” while nevertheless eliminating the freedom to tell the difference?

Only time will tell.

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Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law.

Flashback: Protect Rights of Biological Parents