SCOTUS on Marriage, Part II: The Gotcha Question

The SCOTUS heard oral arguments concerning the definition of marriage Tuesday and Wednesday of this week: Tuesday on California’s Prop 8 and Wednesday on the federal DOMA law. This is part II of my commentary on the discussion. On Wednesday, in Part I, I wrote on a couple of basic definitions. Today I’m looking at the Gotcha question, plus the “Voice of the Children” argument. It’s going to take a third post, coming Monday, to deal with the possible outcomes of the court cases.

The Gotcha Question

Here’s the Gotcha question: “How does a same-sex ‘marriage’ harm your heterosexual marriage?” The assumption is that there is no harm, so there is no answer. But there is harm, even if it isn’t blatantly obvious to the casual onlooker.

The current definition of marriage is a particular contract, binding the parties of the contract with the promise of fidelity, permanence, and protection of family. To change the definition removes those promises from even existing contracts.

Procreation: Separating the marriage contract from the act leading to procreation means nullifying and changing the contract so that there is no particular interest in family. This is important because, without interest in family, there’s pretty much no societal benefit from the contract that the state has an interest in. All benefits of marriage go to couples without the couples giving anything of value to society.

Fidelity: The change in contract also removes the promise of fidelity, because unfaithfulness in a same-sex relationship has no effect on the vulnerability of offspring and parents, in competition with a possible usurper of those protections. (Same-sex partners, incidentally, tend to be unfaithful at rates nearing 100%.) I had the promise of fidelity from my mate when I made the contract; if the court changes the definitions within the contract, it takes away from me this contractual promise.

Permanence: The establishment of permanent family in the original contract is also made vulnerable; since there is no dependent spouse or child produced by procreation within the marriage, there is no assumption of harm when a relationship ends. That is why government has had no interest in automatically sorting out division of property when same-sex couples part (which they do, historically, at rates approaching 100%). Similarly, government stays out when co-habiting unmarried heterosexual couples split.

So the change in definition means the new contract has no promise of fidelity, permanence, or family. How does that play out?

Suppose a father of several children, married to a woman for more than a decade, decides he prefers a different woman, and he ends the contract. The wife, who sacrificed considerably—health, career, energy, time, personal wealth—to procreation and raising the children, is left unprotected. She has no promise of alimony to make up for her sacrifice; she has no promise of custody if she doesn’t have as many resources as the father. She is told all can be taken from her, because there was no expectation of fidelity, permanence, or family in the original contract (even though she entered the contract with those promises expected).

Does the change in definition mean this woman’s relationship with her spouse will end in this disaster? No. But is the loss of protection from this threat real? Yes. She has been harmed.

Suppose a woman is married to a man for more than a decade, producing several children, but she has been unfaithful multiple times. She may be uncertain of the fatherhood of each of the children, or she may know the spouse is not the father. She gets the tax and insurance benefits plus honor of society nevertheless, simply because she continues having a sexual relationship with the spouse, but because there is no expectation of fidelity, the man has no right to expect that any children born to the woman were his offspring. Why marry in the first place, if he doesn’t even have that promise? And if he has no expectation of father-child relationship to the woman’s offspring, can there be an expectation that he provide for them? The man has been harmed by the change in contract, and so have the children.

No longer is it a contract requiring fidelity, permanence, and protections to family. It is now a contract implying only an announcement that two people choose to have some sort of sexual relationship, not necessarily exclusive, not necessarily permanent, and no interest in producing or protecting children—but the contract nevertheless requires society and government to give advantages and honors to the couple simply for their declaration of “love.”

Same-sex “marriage” makes it a different contract than it was. Courts will treat it as a different contract in all 1100+ laws relating to the contract. Laws surrounding marriage—property division, child custody, alimony, etc. will change, because the purpose of marriage and the state’s interest in it will have changed. Parents even lose the values attached to being a mother or father; those get substituted with neutral meaningless terms like “parent 1” or “caregiver.” Those who already have the original contract lose its meaning, and couples marrying in the future have no way to make the contract that heretofore has been available.

Voice of the Children Argument

One of the relatively new arguments voiced last Tuesday will probably be referred to as the “Voice of the Children” argument. The estimated thousands of children living with same-sex parents want their parents to have the same respect that married heterosexual parents have. This is interesting. Adults put children in the position of a family without a married mother and father, and then accuse, “How can you be so unfair to our children?” Instead of solving the problem by avoiding putting children in this deficient situation, they tell society it must accept the problem situation as equivalent to ideal as if that would solve the problem. Or, in other words, let’s decide to pretend it isn’t a problem, so that no one has to suffer the problem.

The question ought to be, what are children entitled to? They are entitled to being raised in a family with married mother and father; society should do all within its power to encourage that situation for each child. Wherever that isn’t possible, the situation for the child will be statistically likely to be deficient, and society will have to somehow use its social and economic capital to make up the deficiency as well as it can.

If society were actually interested in what is best for the child, then the child would be placed within a traditional family for adoption. But that is not being considered by anyone as an option, particularly for children born biologically to one of the same-sex parents. We as a society allow a great deal of freedom among individuals to make mistakes and choose their own way of dealing with them. While in past generations most children born to unwed mothers were voluntarily put up for adoption, today many more unwed mothers (above 90%) keep the child, thus depriving the child of a parent (also making adoption much more difficult for couples wishing to adopt, but that’s a discussion for another day). Many similar problems arise from divorce as well. We don’t take children away from divorcing parents to put them in other two-parent homes; the idea is abhorrent, even to the strongest defenders of the natural family.

With that option off the table, then society must simply spend its social capital tolerating the fact that some children will be raised without a mother and a father.

No matter how much the children are saying, “We don’t want our family to be seen as less ideal than families with a mother and father,” society can’t change facts. We sympathize for any child missing a father or mother, but we can’t magically say, “We’ll just say your situation doesn’t miss a father or mother, and then you won’t feel like you’re missing out.” When children demand, “I want! I want! I want!” sometimes the grown-up has to say, “I’m sorry, but that’s not something you can have.”