Monday, February 28, 2005 - Apache Junction, Arizona, USA
The purpose of marriage is the procreation of children.
Here's what the opposition has to say about children and gay marriage:
"A same-sex union is not a physical union that transmits human life, producing children. A same-sex union is not the joining of two complementary natures that complete each other. Simply stated, a same sex union is not marriage. The idea that homosexuals can create same sex 'marriage' through their individual choice is false."
"The understanding in our society is that the heterosexual, marriage-based family arises from respect for the fact that the relationship between man and woman existed in the context of a commitment to procreation, as ordained by Almighty God. That commitment to procreation then led to a marriage institution that entailed upon the man and the woman certain responsibilities that transcended their feelings — their gratifications, their joy or sorrow in the marriage, once they had made their commitment to the Constitution."
"The truth is that the original and most basic reason for the existence of marriage is to provide a stable environment for the rearing of children. It is an indisputable biological fact, of course, that both a mother and a father are required to bring a child into the world. More and more studies are being produced showing that children grow up healthier, better adjusted and more likely to succeed in life if they grow up with both a mother and a father."
"Homosexual marriage will harm children by denying them the love and nurture of a mom and dad. The only "procreation" homosexuals can engage in requires that a third party must be brought into the relationship."
The fact that homosexuals can't have children in the "natural" sense has long been one of the chief agreement against allowing same-sex couples to marry. The Massachusetts State Supreme Court in the case of Hillary Goodridge & others v. Department of Public Health & another, handled this argument in a way that leaves little doubt about the legality of this opinion. In fact, two of specifically listed "facts" were used by the opposition as to why Massachusetts should not allow gays to marry concerned procreation and the raising of children. These included:
(1) Marriage provides a "favorable setting for procreation."
(2) Marriage ensures the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex."
Below is Chief Justice Margaret H. Marshall's opinion for the majority that meets these two arguments squarely:
Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) ("The consummation of a marriage by coition is not necessary to its validity"). [FN22] People who cannot stir from their deathbed may marry. See G.L. c. 207, § 28A. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), 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. [FN23]
Moreover, 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. [FN24] If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as "the source of a fundamental right to marry," post at (Cordy, J., dissenting), overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.
The "marriage is procreation" argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like "Amendment 2" to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly "identifies persons by a single trait and then denies them protection across the board." Romer v. Evans, 517 U.S. 620, 633 (1996). In so doing, the State's action confers an official stamp of approval on the destructive stereotype that samesex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect. [FN25]
The department's first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the "optimal" setting. Protecting the welfare ofchildren is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. "The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household." Troxel v. Granville, 530 US 57, 63 (2000).
Massachusetts has responded supportively to "the changing realities of the American family," id. at 64, and has moved vigorously to strengthen the modern family in its many variations. See, e.g., GL c. 209C (paternity statute); GL c. 119, § 39D (grandparent visitation statute); Blixt v. Blixt, 437 Mass. 649 (2002), cert. denied, 537 US 1189 (2003) (same); E.N.O. v. L.M.M., 429 Mass. 824, cert. denied, 528 US 1005 (1999) (de facto parent); Youmans v. Ramos, 429 Mass. 774, 782 (1999) (same); and Adoption of Tammy, 416 Mass. 205 (1993) (coparent adoption). Moreover, we have repudiated the common-law power of the State to provide varying levels of protection to children based on the circumstances of birth. See GL c. 209C (paternity statute); Powers v. Wilkinson, 399 Mass. 650, 661 (1987) ("Ours is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy"). The "best interests of the child" standard does not turn on a parent's sexual orientation or marital status. See e.g., Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (parent's sexual orientation insufficient ground to deny custody of child in divorce action). See also E.N.O. v. L.M.M., supra at 829-830 (best interests of child determined by considering child's relationship with biological and de facto same-sex parents); Silvia v. Silvia, 9 Mass.App.Ct. 339, 341 & n. 3 (1980) (collecting support and custody statutes containing no gender distinction).
The department has offered no evidence that forbidding marriage topeople of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth's proffered goal of protecting the "optimal" child rearing unit. Moreover, the department readily concedes that people in same-sex couples may be "excellent" parents. These couples (including four of the plaintiff couples) have children for the reasons others do--to love them, to care for them, to nurture them. But the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws.
While establishing the parentage of children as soon as possible is crucial to the safety and welfare of children, see ., 435 Mass. 285, 292 (2001), same-sex couples must undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage. While the enhanced income provided by marital benefits is an important source of security and stability for married couples and their children, those benefits are denied to families headed by same-sex couples. See, e.g., note 6, supra. While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of a marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity jurisdiction. See E.N.O. v. L.M.M., Supra. Given the wide range of public benefits reserved only for married couples, we do not credit the department's contention that the absence of access to civil marriage amounts to little more than an inconvenience to same-sex couples and their children. Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of "a stable family structure in which children will be reared, educated, and socialized." Post at (Cordy, J., dissenting). [FN26]
The preferential treatment of civil marriage reflects the Legislature's conclusion that marriage "is the foremost setting for the education and socialization of children" precisely because it "encourages parents to remain committed to each other and to their children as they grow." Post at (Cordy, J., dissenting).
In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation.
The case of Heather Anderson and Leslie Christian; et al., v. King County, et al., heard in the Superior Court of Washington State for King County also ruled against the idea that marriage is about raising children. In his opinion, Justice William L. Downing had this to say:
The link between civil marriage and procreation is not what it was when the laws prohibited both adultery and ready access to contraception. Then, it could well be said that love, marriage and baby carriage would come in predictable sequence. The laws of today recognize the reality that a substantial amount of procreation occurs outside ofthe marital relationship. See, R.C.W. 26.26, the Uniform Parentage Act. Of course the laws never have placed a requirement on marriage that the parties procreate nor do they prohibit from marriage those who are unable or disinclined to procreate. Many families today are created through adoption, the foster parent system and assisted reproduction technologies. This last point, by the way, is well illustrated by some of the plaintiffs who, thanks to government recognition of the fact that their sexual orientation is no bar to good parenting, are presently able to enjoy family lives with children.
The legal question is not whether heterosexual marriage is good for the replenishment of the species through procreation. It is. The precise question is whether barring committed same-sex couples from the benefits of the civil marriage laws somehow serves the interest of encouraging procreation. There is no logical way in which it does so.
Today the law and society fully recognize (as well they should) the value of children who join the human family by means of in vitro fertilization, sperm donation, egg donation or surrogacy or who join a new family by way of adoption. It rationally serves no state interest to harm certain of those children by devaluing the immediate families that they have joined.
State action to maintain and strengthen the institution of marriage for heterosexual couples is decidedly a means that is rationally related to promoting stable families and is something that is good for children. Again, the precise question before the Court, however, is whether not having the same state-supported relationship available as an option for homosexual couples furthers this same interest. In other words, would adding this benefit for the second group (and their children) injure that legitimate state interest in the support of families and the nurturance of children? Again, there is no logical way in which it would be so.
It is good for children to be raised in stable families with a father and a mother. There is not the slightest question about this. It is a situation to be encouraged by the state. But, can it be said that fewer children will have this stability because couples consisting of two men or two women are allowed to have a relationship that is state-sanctioned? There is no reasonable explanation for why this would be so. There is no reasonable expectation that, should such a legal result come to pass, married fathers and mothers will abdicate their parental responsibilities or young would-be parents will defect from the ranks of heterosexuals.
On the other hand, when one peers into the future, one circumstance is far more certain to occur. Many, many children are going to be raised in the homes of gay and lesbian partners. Present social trends will undoubtedly continue. Gay and lesbian couples will feel the human instinct to wish to raise children, they will have available either the supportive adoption laws or the technological means to begin raising a family and they will enjoy the increasing public acceptance of such families. All this is certain.
One, then, must try to envision two categories of future children. The first category consists of those whose heterosexual parents will either neglect them or never conceive them because same-sex marriage has been legalized. The second category is those children who will be raised in a home with same-sex adult partners and who would enjoy enhanced family stability and social adjustment if these adults were granted the benefits of civil marriage. The only reasonable conclusion is that the very real second category greatly outnumbers the first theoretical one. Therefore, the goal of nurturing and providing for the emotional wellbeing of children would be rationally served by allowing same-sex couples to marry; that same goal is impaired by prohibiting such marriages.
The above conclusion is inescapable when one looks objectively and dispassionately at the properly framed question. It is the same conclusion reached by the Vermont Supreme Court in 1999. “If anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.” Baker v. State, 170 Vt. 194, 219, 744 A. 2d 864 (1999) (emphasis in original). It is the same conclusion reached by the Massachusetts Supreme Court in 2003. “Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of ‘a stable family structure in which children will be reared, educated, and socialized.’” Goodridge v. Department of Public Health, 440 Mass. 309, 335, 798 N.E.2d 941 (2003).
It has also been suggested that the statutory ban on same-sex marriage serves the interest of protecting children from the harms that may be caused by being raised in a non-traditional family. Although many may hold strong opinions on the subject, the fact is that there are no scientifically valid studies tending to establish a negative impact on the adjustment of children raised by an intact same-sex couple as compared with those raised by an intact opposite-sex couple. The offered studies, anecdotal experiences and opinions regarding children from broken homes or children raised by a single parent have no logical relevance. Unlike the documented impact of children’s exposure to domestic violence and substance abuse in the homes of lawfully married heterosexual couples, as to children raised by intact same-sex couples there is no science, only questionable assumptions based on stereotypes.
The Court concludes that the exclusion of same-sex partners from civil marriage and the privileges attendant thereto is not rationally related to any legitimate or compelling state interest and is certainly not narrowly tailored toward such an interest.
It is obviously invalid to assume that the basis of marriage or even sex is the procreation of children. I couldn't name one person who married his wife or husband for the sole reason of having children. Marriage is a relationship. People marry because they want to be in a committed relationship with the person of their choosing for the rest of their natural lives. Having children is a miraculous bonus.
Can you name a married heterosexual couple who married only because their parents or their community desired for them to commit to each other for life in order to raise a family in a healthy environment? Of course not. People just don't marry for those reasons.
Yet, people leave marriages, by divorce and even by murdering their children, in order to marry someone else who appeals to them. Those who've murdered their children, of course, are allowed to remarry even while in jail awaiting the death penalty as long as they divorced their previous mate. Such is the concern for children and the scantity of heterosexual marriage in some extreme cases. Yet no one is screaming to overturn the laws that allow this. To them, the committed marriage between to gays is much worse.
Once you get past the myths and falsehoods perpetrated by the Religious Right, it is obvious that courts have no other choice but to find the marriage between same-sex couples to be Constitutional.
I must be stupid - Here I thought the reason I married my husband was because we loved and respected each other! Turns out the only reason we should be married is to reproduce.