Baseball Crank
Covering the Front and Back Pages of the Newspaper
December 12, 2005
POLITICS/LAW: Same Sex Marriage and Children

Last Thursday, the New York Appellate Division, First Department - the intermediate appellate court in Manhattan - upheld, against constitutional challenge, the New York Domestic Relations Law's extension of marriage only to opposite-sex couples. (H/T: Althouse). In so doing, it touched on some arguments on the issue that I've been thinking about for some time now.

In particular, our democratic polity has a rational basis for preferentially allocating scarce resources to benefit opposite-sex rather than same-sex married couples to promote two vital interests: promoting the population growth needed to sustain a healthy society and discouraging illegitimacy and abortion.

With a subject as divisive as same-sex marriage, it's necessary to spend a little time first rehashing where I stand on the issue and why. The same-sex marriage debate, at least as it plays out in the realm of law and public policy, really encompasses four distinct questions about of rights and privileges:

1. Is there a social interest served by having government license and regulate marriage?

2. Is there a social interest served by having government provide financial benefits and incentives to encourage marriage?

3. Should same-sex couples be entitled to enter into a relationship licensed and regulated by the state?

4. Should same-sex couples be entitled to financial benefits and incentives that are provided to encourage marriage?

Not everyone comes out the same way on all four questions. Some libertarians, for example, argue that the state shouldn't be involved at all in licensing and regulating marriage. I don't buy that argument, not least because - much as I hate divorce - I recognize that in the absence of recourse to the courts to handle the dissolution of marriages and child custody disputes, you'd end up with more couples resorting to violence to resolve such disputes.

Libertarians and some small-government conservatives also argue that even if the state licenses marriage, it shouldn't be in the business of favoring any one relationship over others in handing out benefits and tax breaks. A 1999 GAO study estimated that the government alone preferential treatment of some kind to married couples in over 1,000 places in federal law, from pensions to the tax code. The libertarian/small-government conservative argument - that a smaller, less intrusive government would intersect with families at fewer points and that government shouldn't make any effort to encourage or discourage any particular behavior beyond what is legitimately criminalized - has its merits, but for now, I'll just leave that debate for another day. Like it or not, government is in the social-policy business, and until the day comes when we can create a radically smaller and less intrusive government, we're going to have to decide how that government allocates scarce resources among competing claimants.

As I explained at greater length here and here, I support legislatively extending to same-sex couples the right to have their relationship recognized and sanctioned under law, and I support as well allowing such couples those benefits that are provided to married couples principally for the purpose of enabling them to dispose of their own property and to participate in each other's major life events - benefits like joint title to property, inheritance rights, hospital visitation rights, etc. None of these rights imposes any substantial costs on society at large - except, perhaps, for the right to seek court assistance in dissolving the civil union - and they are consistent with the view that the decision to spend your life with a same-sex partner is between you, your partner and the Lord, and isn't fundamentally the state's business.

But where I disagree with proponents of same-sex marriage is on two counts: first, the effort to forbid the state from offering any benefits to traditional, opposite-sex married couples unless it offers them to same-sex couples on the same terms, and second, the effort to impose changes in the legal status of marriage through the courts rather than the democratic process. As I've explained before, what I find particularly offensive about the latter is the fact that its core argument - that there is no "rational basis" for the state to favor traditional, opposite-sex marriage - is precisely the denigration of such marriage that same-sex marriage proponents are constantly trying to disclaim:

[W]hat does stick in my craw rather severely is the Goodridge approach of having a bunch of judges pronounce not only a change in the thousands-of-years-old definition of marriage, but also that there is no rational basis whatsoever for that institution as it has always existed. . . [W]e're being asked to swallow a legal declaration that our longstanding and sacred institutions have no meaning, and we're supposed to smile when they tell us that. Why shouldn't that bother me?

Anyway, all of this is background. The New York court's decision properly recognized that this issue should be dealt with by the state Legislature (as is being done in Great Britain), not the courts, and distinguished the Supreme Court's 1967 decision in Loving v. Virginia, involving interracial marriage, finding that "that Court held that the intent of the anti-miscegenation statute directly conflicted with the fundamental right to be free from racial discrimination based on the Equal Protection Clause, as well as with the fundamental right to traditional marriage based on substantive due process." Hernandez v. Robles, 2005 NY Slip Op 09436, at *9 (N.Y.A.D. 1st Dep't Dec. 8, 2005).

The portion of the opinion I'm interested in dealt with the rational basis the state does have in offering additional benefits and protections to traditional, opposite-sex marriage:

Marriage, defined as the union between one man and one woman, is based upon important public policy considerations and has been recognized as a fundamental constitutional right. These considerations are based on innate, complementary, procreative roles, a function of biology, not mere legal rights. The reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth.

The legislative policy rationale is that society and government have a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing. It systematically regulates heterosexual behavior, brings order to the resulting procreation and ensures a stable family structure for the rearing, education and socialization of children. Marriage promotes sharing of resources between men, women and the children that they procreate; provides a basis for the legal and factual assumption that a man is the father of his wife's child via the legal presumption of paternity plus the marital expectations of monogamy and fidelity; and creates and develops a relationship between parents and child based on real, everyday ties. It is based on the presumption that the optimal situation for child rearing is having both biological parents present in a committed, socially esteemed relationship. The law assumes that a marriage will produce children and affords benefits based on that assumption. It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depend on a healthy marriage culture for this latter, critical, but presently undervalued, benefit. Marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society, and such preference constitutes a rational policy decision.

+++

Plaintiffs fail to carry their burden of demonstrating that the legislative facts on which the statutory classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker. They do not dispute the Legislature's assumptions concerning the advantages of encouraging the rearing of children by both biological parents. Their argument that the statute does not have a rational basis because it allows heterosexual couples unable or unwilling to have children to marry ignores precedent holding that the classification created by a statute need not be perfect. Nor does it lack rational basis because it addresses one legitimate policy interest or problem (regulating heterosexual marriage) over others even if they are related to the same subject. The legislative process involves setting priorities, making difficult decisions, making imperfect decisions and approaching problems incrementally, and rational basis analysis does not require that a legislature take the ideal or best approach.

Slip op. at *6-8 (Emphasis added; citations omitted).

There's a couple of critical points here. Proponents of same-sex marriage often treat the connection between marriage and children as an argument that can be disposed of by syllogism: that since heterosexual couples are able to marry even if they have no intention or ability to have children, it must be the case that bearing and begetting children has no rational relationship to marriage and can't be a proper basis for distinguishing between opposite-sex and same-sex mariage. There are, however, four major reasons for finding this argument unpersuasive.

The first, not discussed above, is one I'll touch on just briefly here: privacy. The state can determine just by looking at a same-sex couple that they're not likely to bear children, and can't do so through traditional means. With the exception of the aged and a few other classifications, that's not true of opposite-sex couples: the government would need to conduct an intrusive investigation to ascertain that an opposite-sex couple was infertile, not having sex, using birth control or otherwise unable or unwilling to bear children.

The next two reasons are related. As the court notes, the rational basis test doesn't require a perfect "fit" between the preferred solution adopted by democratic policymakers and the ends they seek to promote. There are scores of examples of government programs, tax credits and the like that provide benefits to a group of people or institutions not because they will all advance the interests the government is trying to promote, but because it can be rationally determined that they are more likely than another group to provide the desired social benefits. If we required a perfect fit, precious few government programs could survive rational basis scrutiny.

The third, related reason is that society as a whole has an interest in promoting childbearing, an interest the Hernandez court dryly notes is "critical, but presently undervalued." A look at the demographic crisis in Europe, Russia and Japan is all that needs to be said for the importance of this interest: without a decent level of childbearing, society becomes top-heavy with old people and enters a spiral of declining population, which is problematic on many levels.

Now, it's certainly true that same-sex couples can now use modern technology to have children without being in a heterosexual relationship. And it is argued - and argument I won't even try to wade into - that same-sex parents can be just as good at raising children as opposite-sex couples. That's still not enough to show that there's no rational basis for preferring opposite-sex couples if your goal is to promote having children.

Let's give a hypothetical example to illustrate why. Let's say that you're an investor in a new planned community, to be started from scratch in a part of the country that presently has little population. And let's further suppose that, based on the mix of businesses you are hoping to attract to your planned community, your consultants and investment bankers inform you that the economic assumptions of the project require that a fairly large proportion of the new residents be families with children. And, finally, let's suppose that you had a finite budget for advertising and sales, and that budget included a deal with an airline to bring in, say, 500 prospective residents at little or no cost to inspect the place.

It doesn't matter what your agenda or your biases are - acting out of pure rational economic self-interest, wouldn't you very strongly prefer that the 500 seats went to opposite-sex married couples? Aren't they very obviously the people most likely to produce children in general, and multiple-child families in particular? Granted, I don't have an empirical study in hand on the point, and I suspect that if you did one it would be objected to on the grounds that many obstacles stand in the way of same-sex couples having children . . . but even so, is it really so irrational to believe that a set of 250 opposite-sex married couples would, in almost any conceivable circumstance, produce more children than 250 same-sex married couples of the same age and socioeconomic background? If that isn't a rational conclusion for government to draw, there are precious few of the conclusions supporting any legislation that will withstand scrutiny.

The fourth point is the flip side of promoting the begetting and bearing of children: promoting the raising of children in two-parent homes rather than single-parent homes by "set[ting] up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing". If underpopulation is a bit of an abstract, big-picture public policy problem, illegitimacy is not. An endless march of empirical studies has found that illegitimacy correlates strongly with poverty, criminality, and virtually every other social problem you can think of.

And, by definition, illegitimacy is an exclusively heterosexual problem. Unmarried gay sex does not lead to unplanned or unprepared-for pregnancies, period. Unmarried gay couples will not produce single-parent homes, nor will they have abortions, whereas the number of children aborted by or born to unmarried heterosexuals every year is very large. By targeting tax breaks and other preferential benefits towards opposite-sex married couples, government can help encourage unmarried opposite-sex couples to marry and can reinforce existing social norms in favor of such marriages.

Like I said, neither of the two arguments depends in any way on a legislative determination of whether same-sex couples are or are not as qualified to raise children as opposite-sex couples. Rather, they simply recognize that opposite-sex couples are more likely to have more children once married, and are also far more likely to have children even outside of marriage. It's an entirely rational policy choice, therefore, to focus scarce societal resources on promoting opposite-sex marriage as a way of sustaining population growth while discouraging illegitimacy.

Posted by Baseball Crank at 6:41 AM | Law 2005 • | Politics 2005 | Comments (17) | TrackBack (0)
Comments

There's one logical flaw I want to point out in the illegitimacy argument. Yes, it is a societal benefit to devote resources to opposite-sex married couples in order to discourage illegitmacy. But also devoting those resources to same-sex married couples does not conflict with that goal.

You're also overlooking the issue of whether promoting same-sex marriage could have a benefit to public health, given the (already existing) high rate of sexually transmitted diseases among the male homosexual community. Discouraging promiscuity may not be as important as discouraging illegitmacy, but it's not valueless either.

Posted by: Devin McCullen at December 12, 2005 12:15 PM

I'm not a lawyer, so bear with me. Marriage should be thought of as a contract between consenting adults to share resources and burdens. If scarce public resources should be used in any way here it should be in civil court to enforce contractual obligations at the expense of the parties involved. It seems to me that the only legitimate state interest should be that children be brought up to be good citizens. The best chance of that happening is that the child have loving parents. Sometimes only adoption assures the child have loving parents, and that would include adoption by same-sex couples. I don't doubt the statistical evidence that children of single parents do not fare as well as children of married couples; but there are many examples of single parents who raise fine children. If the state has an interest that a child be raised by two parents, would you require widows who do not re-marry to give up their children? As you say, the technology exists for women to have children outside of marriage. What would you say of a lesbian couple one of whom decides to have a child by an anonymous donor? Would you take away their child? The state could best ensure well brought up children by supporting families with children, however they are defined. Take the scarce resources wasted on childless married couples and use them to enhance tax breaks for people who are raising children so that they will not be a burden on the state. Any other approach is just plain bigotry. By the way, the Christian Taliban who believe every word in the Bible should note that the Bible says that Joseph, who was married to Mary, the mother of Jesus Christ whose birth some people make a big deal of this month, was not the father of her baby. As President Bush says, "Happy Holidays"

Posted by: jim linnane at December 12, 2005 12:15 PM

The same-sex marriage bashing righties engage in is such a tired old saw. No doubt there will be a lot of legal terminology, religious rhetoric and whatnot thrown around on this all in the effort to disguise what is plain and simple bigotry.

Posted by: jim at December 12, 2005 1:00 PM

jims:

Great arguments you guys have there. No, really. I can't believe all the time I've wasted in past arguments, actually looking up facts to support my opinions, because all my opponents had to do is call me a bigot, and that automatically trumps any and all evidence. Bravo to both of you. [clap clap clap]

Does everyone else in the "reality-based" community find the use of evidence repugnant?

Posted by: Jim, but neither of the jims above at December 12, 2005 1:38 PM

I always thought that the state should get out of the marriage business, and into the civil union one--assuming the state should even care about such things. However, as long as we deal with issues such as inheritance, custody, medical insurance, life insurance, and the like, the state must involve itself.

I also think that marriage is, by definition, a RELIGOUS union, regulated by various denominations. You cannot, for example, be a same sex couple and be MARRIED in church by a priest. The rules of that particular religion forbids it. So why argue. The answer may actually be to form your own religion, permit same sex marriages, then sort it out in court, on a First Amendment basis--I am not a lawyer, so I have no clue if that is a valid argument.

On the other hand, we do have restrictions: bigamy and polygamy was a condition for Utah to become a state, so there is indeed case law of some kind supporting government interference.

My own opinion is to allow same sex unions, call it what you will, but then the license the state gives for all should be a Certificate of Civil Union.

One thing I don't want to see is a Constitutional Amendment on marriage, or flag burning, or anything else. Those morons on the far right don't seem to get the constitution is what defines what the government cannot do, not what the citizenry cannot.

Posted by: Daryl Rosenblatt at December 12, 2005 2:41 PM

Strong post, Daryl.

Posted by: Mike at December 12, 2005 2:51 PM

"...promoting the population growth needed to sustain a healthy society and discouraging illegitimacy and abortion."

Is this the kind of evidence you are talking about? Couched language that really means very little? Yeah, if we let gays get married, or if we didn't have marriage or the government didn't tax married people differently we would have a hard time sustaining the population although people apparently would be fornicating wildly and McDonald's would provide abortions. Absurd.

The whole clap-trap has a basis in bigotry. It is sort of like the Intelligent Design crap that is being trowelled out these days. It sounds okay, it sounds somewhat logical, but really it all comes down to the God thing. Yes, the Bible has passages about the sin of "a man lying with another man." Leviticus is also all full of sins like wearing clothes of mixed fibers, shaving facial hair and so on. These are all equally sinful yet people like to pull out the stuff they don't like and leave the other things behind.

What happens when England begins allowing gay marriage (pretty soon folks so get nervous) and their society somehow manages to cling together? Will that be enough evidenced-based reality for you or will God smite those crumpet-eating sinners with some huge anti-gay religious space lazer?

Posted by: jim at December 12, 2005 3:45 PM

jim - Just so I know: is your standard for any government action that it not take place unless the proponents can prove that society as we know it will end if it is not taken?

I'm not saying same sex marriage is the end of the world. I'm saying that there is a rational and prudent basis for enacting legislative civil union statutes and that the basis for a one-size-fits-all constitutional rule is unfounded.

Daryl - Like I said, I'm sympathetic to the libertarian position, but it ain't happening.

Posted by: The Crank at December 12, 2005 4:13 PM

What happens when England begins allowing gay marriage (pretty soon folks so get nervous) and their society somehow manages to cling together? Will that be enough evidenced-based reality for you...

Looks like the Crank's position is too subtle for Jim, but I'll try anyway - get a state legislature to pass gay marriage, have tghe governor sign it, and the Crank will be fine with it.

If the experience in England (or Massachusetts) is sufficiently unalrarming, it may be easier to find the votes here.

But advancing gay marriage by judicial cram-down is annoying.

FWIW on Loving v Virginia - as I recall, the Supreme Court did not exactly take the lead in striking down anti-miscegenation laws. Something like 13 states repealed theirs before the Supreme Court struck down the remaining thirteen.

Posted by: Tom Maguire at December 12, 2005 4:18 PM

Maybe Crank would be fine with it done at a local level. He would be in the VAST minority of conservative Republicans. Because when local laws are passed they are contested. Based on what he has written it does not seem that he would be fine with local gay marriage laws. Perhaps I am wrong but it sure seems that way.

And Tom, I don't think his point is subtle.

And Crank that was a nice attempt at either sarcasm or being facaetious. I don't think that governments should pass laws banning things that have no apparent problem (no doubt we disagree about what is and is not a problem).

Posted by: jim at December 12, 2005 4:42 PM

TM is partly correct. My preferred solution is civil unions with the state providing some but not all the benefits of traditional marriage, and retaining the flexibility to change over time as we develop more experience with civil unions. However, I'm not nearly as strongly opposed to legislatively enacted same-sex marriage as to a judicially-imposed, cast-in-concrete fiat that the two may never be distinguished.

Posted by: The Crank at December 12, 2005 5:36 PM

Crank-

Your "preferred solution is civil unions with the state providing some but not all the benefits of traditional marriage."

Which benefits do you prefer to see the state hold-off on? And why?

Seems that the reason to distinguish civil unions for same-sex couples is respect for traditional notions of "marriage," as you discussed in your Blog. But in addition to the title of "marriage," why deny any other benefits?

Posted by: Mike at December 12, 2005 5:43 PM

I have to admit, I've never before heard the argument "for" opposite-sex marriage presented by the Crank. It certainly has me thinking about this debate from a different perspective.

FWIW, I am a member of an opposite-sex marriage, with two children, and of course I agree with the general argument that children are most well served by being part of a loving family. I know several single parents, and I know they'd all agree that it's not easy being a single parent, many of them wish they were part of a ?partnership? in raising their children. I also know several same-sex couples, who are in long term committed relationships. I know several of these couples who have children.

From the albeit limited sample size that I have empirical data from, I would say that the children being raised by same-sex couples are generally in better circumstances as measured by the amount of care, attention, nurturing and love that they receive than those children who are in single parent households.

Note that the data set I have had a chance to observer largely includes well educated, upper and middle class families. Although I have also observed single parent homes in which the parent is less well educated and from a lower economic class. I have never observed a same-sex couple who has children, where these parents are less well educated and from a lower economic class. Again, although my sample set is small, the trend seems to suggest that same-sex couples who go through the significant legal and social hurdles in order to have a child (through medical science, adoption, etc.), tend to be more well educated and from the upper to middle economic classes. Furthermore these same-sex couples seem to have a very strong desire to be ?good? parents and to develop a family structure in which their children have far more than the average amount of care, attention, nurturing and love.

I have to admit, I have not had an opportunity to research whether there are studies which have been published which would contradict my personal observations in this arena. So I invite any of you who have seen data to the contrary to share that data with me.

That being said, it seems to me that at least in the cases I?ve observed, and following the Crank?s logic, that a legislature should design laws which have the intended effect of encouraging behavior that is to the benefit of society in general; that it would be a positive thing to encourage same-sex marriage as a social vehicle to encourage and promote the creation of more caring, attentive, nurturing, and loving households for more children.


Posted by: Brad at December 12, 2005 11:35 PM

Crank,

As a supporter of same-sex marriage, thanks for a spectacular post on why this is a political issue rather than a judicial one, at present. I may have it copied and laminated so my non-lawyer friends get it.

Query - what happens if sexual orientation becomes a protected class (or even due intermediate scrutiny?)

Brad,

An argument can be made that it's precisely the obstacles to same-sex partners raising children that inform your impressions. The group is self-selected to a large degree. If it becomes easier for LGBT couples to adopt, surrogate, AI, etc, such 'upward pressure' on attentiveness might be reduced. I'm not sure I buy it, but something worth considering before we get into social engineering here.

Posted by: Pooh at December 13, 2005 12:23 AM

Well stated, Crank. Consider it sent to my friends and family.

Posted by: Richard at December 13, 2005 2:13 AM

Crank,

In general I agree with you that courts should stay out of the business of enacting major social changes through fiat. Given trends in state legislatures during the 1960s and 1970s there would probably be as much access to abortion today without Roe v. Wade as there is with Roe v. Wade as it has been nibbled away by artful right wing legislatures. What Roe v. Wade has accomplished is a built in advantage for right wing Republicans and a litmus test that has almost destroyed the Democratic party. If the courts in a state, Massachusetts, discover a right to same sex marriage, and the voters and the legislature in that state do not overturn that decision, Massachusetts again, then it is a done deal. It is also a done deal in Canada by legislation. Other states and the UK allow civil unions. Sooner or later, I guess, not being a lawyer, federal issues about full faith and credit and equal protection are going to come up.

Posted by: jim linnane at December 13, 2005 3:57 AM

I'm with daryl. It may be somewhat farfetched, but its the most logical way to approach it. Instead of patching this and band-aiding that, build a whole new system the right way.

And the Constitution should never be about prohibiting the rights of the citizenry.

I'm all for legislation taking care of this issue, but its still an issue of minority discrimination. It's pretty tough for the minority to get their views enacted by legislation. That's why the courts' decisions should be respected. Plessy v. Ferguson arose from a discriminatory law. The rights of the minority were being abridged, and that's wrong. Same deal with Brown v. Board. Just because the majority legislates something, doesn't make it right. The Judiciary is there to make sure a tyrranny of the majority does not develop. The eyes of justice are blind.

Posted by: kevin at January 12, 2006 4:59 PM
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