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.

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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.