Prop 8 update: the question of child welfare

Thirteen states have signed on as “friends-of-the-court” to assert that defining marriage is a state issue rather than a federal issue. If gay marriage comes to pass federally, they promise to break away and become colonies. (kidding.) The irony is that in order to argue for a state’s right to determine the definition of marriage, they have to outwit Judge Walker’s logic that Prop 8 violates the 14th Amendment, Equal Protection clause of the US Constitution. Basically, the age-old arguments are being pushed to their limits within a federal framework (rather than a state framework) because this is ultimately going to the US Supreme Court. I’m not sure how much life these age-old arguments have left, but some new twists have turned up that I haven’t seen before.

Here’s an example:

  • Heterosexual couples who are infertile or do not have children reinforce and exist in accord with the traditional marriage norm. This is because by upholding marriage as a social norm, childless couples encourage others to follow that norm, including couples who might otherwise have illegitimate children, and it is in children’s best interest to be in a stable household.
  • Parenting by same-sex couples is not worthy of the same protections because same-sex couples can only become biological parents by deliberately choosing to do so; thus, without the same potential for unintended children, the state does not necessarily have the same need to provide such parents with the incentives of marriage.
  • If over time society concludes that the children of same-sex couples would do better if some incentive existed for such couples to remain together, then states can address that need.

So, the argument is that the state is interested in producing children, society is interested in children having stable homes (and a married coupledom is such an incentivized home), but same-sex parented homes are seemingly stable enough that marriage for them is unnecessary at this time. I don’t think this makes much sense, unless you deem same-sex parented homes as “lesser than” opposite-sex parented homes.

The way I see it, it’s a question of which comes first: The state’s desire to produce children, or society’s desire to care for children? Here in Washington State where same-sex adoption is legal, there is a campaign to get gay couples to adopt because these couples generally tend to have disposable incomes. This campaign exists because there is an abundance of uncared-for children. It is briefly suggested by the “friends-of the-court” that the welfare policies of the 1960s weakened the incentive to marry (since a single mother would be supported by the government), and there is a subtle suggestion that adoptions by same-sex couples are a band-aid to the problem of child welfare; the “ideal” is supporting marriage as is and limiting government welfare. The “friends-of-the-court” admit that gay couples are great at family planning, but are nonetheless averse to incentivizing their families. Why? Again, I think it’s because of a “lesser than” stance. They repeatedly state that Prop 8 wasn’t about “animus toward gay people,” but obviously what is at work here is an animus toward homosexuality. Because they can’t say “love the sinner, hate the sin” (due to the separation of church and state), they instead take a scenic route through heteroville.

Some of the language of the document sounds like it could have come directly from Mormon leaders. Consider this:

In brief, the State may rationally reserve marriage to one man and one woman because this relationship alone provides for both intimacy and complementarity, while also enabling the married persons in the ideal to beget children who have a natural and legal relationship to each parent, who serve as role models of both sexes for their children.

How can they not realize that this language is homophobic? Are same-sex relationships devoid of intimacy and complementarity? What does it mean to be a “role model” of both sexes? Because I have a penis, I am A, B and C? Personally, most of my role models are women. Does that make me “gender dysphoric?” Good grief.

The next set of arguments has to do with the idea that if marriage isn’t about procreation, then it can’t be about anything, because “commitment” as a definition leads to incest, polygamy, etc, so the government might as well get out of the marriage business altogether. Walker had stated that marriage is about “1) facilitating governance and public order by organizing individuals into cohesive family units; 2) developing a realm of liberty, intimacy, and free decision-making by spouses; 3) creating stable households; 4) legitimating children; 5) assigning individuals to care for one another; and 6) facilitating property ownership” and that a gender distinction is not important. The opponents of Walker argue that if there’s no gender distinction, then the government “must necessarily be served even more by expanding marriage to any group.” Same-sex marriage is deemed the limit here, they say, only because of a “desire for social recognition and validation of same-sex sexual love and relationships,” a desire for validation that could apply to any other group. Being “gay” is not a suspect class and they have judicial precedent to prove it.

Unfortunately, I can see why gay rights groups were frustrated about taking this through the legal system right now, because I can see how the odds are stacked up against gay marriage in the form of endless rhetoric.

10 thoughts on “Prop 8 update: the question of child welfare

  1. The rhetoric might seem endless, but just glancing at this collection of their briefs, these amici curiae are a bunch of familiar old names and faces. And as Jeremy notes, consider how many states did not join INDIANA, VIRGINIA, LOUISIANA, MICHIGAN, ALABAMA, ALASKA, FLORIDA, IDAHO, NEBRASKA, PENNSYLVANIA, SOUTH CAROLINA, UTAH, and WYOMING.

    Edited to add, this is evil:

    If over time society concludes that the children of same-sex couples would do better if some incentive existed for such couples to remain together, then states can address that need.

    Another example of why Dallin H. Oaks deserves scorn, not love.

    And a P.S. BTB provides a handy list/synopsis of the folks filing these briefs.

  2. Unfortunately, I can see why gay rights groups were frustrated about taking this through the legal system right now, because I can see how the odds are stacked up against gay marriage in the form of endless rhetoric.

    True, it may not be a favorable time for this to get sent through the courts. Wow, those are some pretty terrible arguments, though.

    by upholding marriage as a social norm, childless couples encourage others to follow that norm, including couples who might otherwise have illegitimate children, and it is in childrens best interest to be in a stable household.

    So do gay couples, especially those who are raising children. The example of gay-headed families gives the message that marriage is a stable commitment that anyone can aspire to, even people that have been dismissed as sinners.

    It’s bad enough that these briefs are arguing that government social engineering should trump the right to equal protection under the law. But if it does, and they’re that intent on using the legal system to convince people to want to marry, who do you think is a better advertisement for the joys of marriage? A loving married gay couple or a heterosexual marriage like Ted Haggard’s?

  3. Heterosexual couples who are infertile or do not have children reinforce and exist in accord with the traditional marriage norm. This is because by upholding marriage as a social norm, childless couples encourage others to follow that norm, including couples who might otherwise have illegitimate children, and it is in childrens best interest to be in a stable household.

    That’s a better argument for same-sex marriage. Look how hard gay people are fighting for the right to marry. I’d go so far as to say that right now they’re doing more to “uphold marriage as a social norm” than any other group in America.

    Parenting by same-sex couples is not worthy of the same protections because same-sex couples can only become biological parents by deliberately choosing to do so; thus, without the same potential for unintended children, the state does not necessarily have the same need to provide such parents with the incentives of marriage.

    Basically, this advocates punishing gay people for being responsible parents. (And it contradicts the first argument.)

    If over time society concludes that the children of same-sex couples would do better if some incentive existed for such couples to remain together, then states can address that need.

    Wow. So much for “it is in childrens best interest to be in a stable household.”

  4. Basically, this advocates punishing gay people for being responsible parents. (And it contradicts the first argument.)

    I thought about remarking on this point as well. This is supposed to be for the kids’ sake?

  5. Chino @ 1: Even if these are familiar names/faces, don’t you think they do a good job at pulling up judicial precedent? I guess what I’m asking is, even if their arguments about marriage/reproduction/gay-parenting are silly, they point to all the reasons that gay people have not been deemed a suspect class in the courts heretofore. What evidence is there the Supreme Court would change the tune now?

  6. Alan – I’m no legal scholar, but my sense is that Boies and Olson spent their time wisely. Whether their arguments were successfully crafted with Kennedy in mind or in anticipation of some other SCOTUS-level eventuality is beyond my pay grade. I’m admittedly a foot soldier who invested in EQCA’s attempt to transform themselves from Sacramento lobbyist outfit to grassroots operation — and came out on the other side with a certain amount of cynicism regarding the alphabet soup of LGBT orgs presumably tasked with making progress happen. For what it’s worth, the few dollars I’ve sent to activists I know by name have produced an ROI that I would’ve never achieved if I’d simply cut checks to HRC or EQCA. That said, if I thought AFER needed money, they’d get some. But they don’t. It’s all about the waiting at this point. And I think we need to be cool with that.

  7. Parenting by same-sex couples is not worthy of the same protections because same-sex couples can only become biological parents by deliberately choosing to do so; thus, without the same potential for unintended children, the state does not necessarily have the same need to provide such parents with the incentives of marriage.

    That’s not necessarily true. The argument fails to account for the fact that for many, sexuality is fluid. Also, we’re not just talking about gay men and lesbians but bisexuals and transgender people too. And in their relationships they can have unintended children. This argument only works in the case of people who are solely attracted to members of the same sex and who never diverge from that preference in their love life. In reality, there is still a potential for unintended children.

  8. Oh man, it just launched, and it’s friggin’ awesome.

    Check this out: NOM Exposed

    Hahahaha! I don’t expect we’ll be hearing any more denials from Brian Brown, Maggie Gallagher, Kim Farah or Michael Otterson about the Mormon-NOM connection. Punks.

Leave a Reply

Your email address will not be published. Required fields are marked *