However the Court rules, the debate won’t be over. Perhaps
it will never be over (see, for example, abortion). Whether SCOTUS says
California voters may take away the right to marry, or that the Defense of
Marriage Act is unconstitutional, or anything in between, the fight won’t stop.
Yet in many ways we’re all debating the wrong thing. After all, civil marriage is a legal
construct: it’s designed to ensure the orderly transfer of property – primarily
between men, at least originally. (When women were property.) It’s also, at least historically, about inheritance
by, and protection of, “legitimate” children. Indeed, much of argument before SCOTUS, and
in the various courts and legislatures, has been about “what’s best for the
children.” Justice Kennedy wondered
aloud about the estimated 40,000 children of same sex couples in California, and what
their needs and rights are. (Please do NOT take that as an indication of how he
will rule.)
In many of the decisions about marriage, including the one
in Washington that Legal Voice and our allies brought,
courts have bought into the notion that marriage is primarily for procreation;
that is, we must have marriage as an incentive to couples to be tied to one
another and to have and raise children. I like to refer to this as the
“unrestrained heterosexual sexuality” argument, or the “straights behave like
bunnies” theme. And it’s hogwash.
First of all, I doubt anyone says “I’d like to have
unrestrained (heterosexual) sex with you but you might get pregnant so let’s
get married to ensure our children have Social Security benefits.” (At least, I hope no one does; what kind of
fun is that?) More important, at least in my view, are all those couples who
choose not to or cannot have children: are their relationships less worthy of
state recognition? If you rest the right to marry on the needs of children,
you’re ignoring – indeed, snubbing – hundreds of thousands of healthy and happy
couples.
And what about the needs and rights of single parents and their children? The data are clear that parenting outside marriage is on the rise. How do we ensure that these families also have access to the legal and social protections that come with marriage? One answer – or least a theme – is proposed by Nancy Polikoff, who asks why we pin all those protections to marriage, rather than to other relationships or statuses. It’s a good question. Is there a better, more just and equal way, to recognize and venerate all families?
I’m not sure Professor Polikoff has the best approach, because it seems rather ad hoc to me, but at least she’s thinking. Maybe, just maybe, once we win marriage equality, we can turn our attention to that more expansive question. Who’s with me?
Okay, I'm not really worried about protecting Batman. Still, Alfred has rights too. Or he should.
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