Marriage Equality: It's Not About Children

Opponents of marriage equality like to say that prohibiting legal recognition of same-sex marriage is about protecting children.

It’s not. 

It’s fundamentally about two people who love each other (just like heterosexual couples) and who, as citizens of the United States, desire the same social and legal recognition (and accompanying benefits) of their relationship as that traditionally enjoyed by heterosexual couples.

This, I think, was the key element of Judge Robert Shelby’s ruling last month in Kitchen v. Herbert. The State tried to make it about children, but Judge Shelby rejected that approach, as is reflected in the following snippets from his ruling that follow a logical progression toward his conclusion:

• “A person’s choices about marriage implicate the heart of the right to liberty that is protected by the Fourteenth Amendment … 

• “The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry … meaningless ...

• “[H]owever persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view … 

• “Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities …

• “Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition …

• “The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.

• “[T]he Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry [which has a long history of legal precedent] and the right to have that marriage recognized by their government. These rights would be meaningless if the Constitution did not also prevent the government from interfering with the intensely personal choices an individual makes when that person decides to make a solemn commitment to another human being. The Constitution therefore protects the choice of one’s partner for all citizens, regardless of their sexual identity.”

Judge Shelby’s words read very well in the court of public opinion (at least I think so). But they are also, I believe, quite profound from a legal perspective. Why? Because the Supreme Court has long held that a right to marry exists under the U.S. Constitution. But no court – so far as I am aware – prior to Judge Shelby’s ruling had found specifically that there is a legal right to marry someone of one’s own gender, citing the common-sense principle that a constitutional right to marry is meaningless if the government interferes with the very personal choice of whom to marry.

Rational Basis

Most of the legal attacks against marriage equality are linked to what is called the “rational basis test.” If a law discriminates against a class of people, government must have a rational basis for doing so; if it does, then the discrimination is legal; if it doesn’t, the discrimination is unconstitutional. One of the jobs of the courts is to decide what types of discrimination are permissible and what kinds aren’t.

In its arguments in Kitchen v. Herbert, the State of Utah tried, unsuccessfully, to demonstrate that there is a rational basis, based on legitimate public policy goals, for discriminating against gays and lesbians by prohibiting the government from allowing or recognizing same-sex marriages. 

A discussion of these arguments will be left for another day. For present purposes, however, I’d like to quote a couple of passages from Judge Shelby’s ruling as well as the recent ruling of (federal) Judge Terence Kern in which he found that Oklahoma’s ban on same-sex marriage unconstitutional.

Judge Kern: “Civil marriage in Oklahoma does not have any procreative prerequisites. See supra Part VI(C); see also Gill [a federal court of appeals decision addressing same-sex marriage issues] , 699 F. Supp. 2d at 389 (“[T]he ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.”).” 

Judge Shelby: “[H]owever persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite- sex couples who are unable to reproduce or who choose not to have children.”

The inability of gay and lesbian couples to procreate argument is only one of those advanced by the State and “traditional” marriage activists. In one or more subsequent posts, I will look at other arguments, including an emerging pet theory that children, whether born or not, have an inalienable right to opposite-sex parents (one that will be prominently featured at the upcoming “Stand for Marriage” rally).

But before I leave, I want to state that I am the father of 10 children. I love my children. My partner (soon-to-be-husband) loves my children. But my desire to marry the man I love fundamentally has nothing to do with my children. It is about Mark and me and our commitment to and love for each other. Period.