My further thoughts on some of the latest marriage equality rulings, originally published in my Mombian newspaper column.
Anyone following the progress of marriage equality in the United States may have had a bit of whiplash in the past few weeks after two opposing federal decisions. In both cases, the best interests of children weighed heavily. I have to remember that I cannot let the marriage equality struggle define my family. My spouse and I were together for 13 years and had a three-year-old before we got legally wed. Marriage didn’t make us a family. Love did.
It is still often hard to read the headlines. A federal district court judge in Louisiana ruled on September 3 that same-sex couples did not have a constitutional right to marry. Judge Martin Feldman wrote, “Louisiana’s laws and Constitution are directly related to achieving marriage’s historically preeminent purpose of linking children to their biological parents.” That proves, he believes, that the ban on marriage for same-sex couples is not a matter of “hateful animus,” but rather has a rational basis — since same-sex couples cannot both be biologically related to their children, they should not be allowed to marry.
When I heard Feldman’s ruling, my heart gave a lurch. What might happen when, as expected, the issue makes its way to the U.S. Supreme Court? Might they agree that states have the right to discriminate against same-sex couples in marriage? How would I explain that to my 11-year-old son while also trying to instill a sense of all that is good in our country? How would such a decision affect our family plans for travel and (hypothetical) job or retirement relocation? And how much worse would it be for families who already live in states without marriage equality?
I then reminded myself of just how ridiculous Feldman’s argument is. Same-sex couples aside, plenty of different-sex couples are not biologically related to their children, by reason of adoption, use of donor cells, or surrogacy. Their children have not been shown to turn out any worse that those with two married biological parents. Surely the illogic would be noticed.
Turns out I wasn’t the only one thinking that way. The next day, the 7th U.S. Circuit Court of Appeals decided in favor of marriage equality, and Judge Richard Posner wrote in the ruling, “To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents.”
One wonders why he didn’t also mention some of the other family structures I included above; I can only guess that adoption was example enough, as it flips a major anti-equality argument on its head. Opponents of marriage equality have tried to argue that different-sex couples need marriage in order to reduce the number of “unintended children” who would otherwise grow up without two biological parents. Same-sex couples, who cannot have children unintentionally, therefore don’t need marriage — or so the argument goes.
As Posner explained, however, married same-sex couples are more likely to want to adopt than unmarried ones, because marriage brings state and federal benefits that help families. Therefore, he said, “same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters. Notably, same-sex couples are more likely to adopt foster children than opposite-sex couples are.”
In the end, he wrote, the claim “that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.”
More sarcastically, he observed, “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
Posner, like Feldman, is a Republican Reagan appointee, but said in an NPR interview in 2012, “I’ve become less conservative since the Republican Party started becoming goofy.” This may be the only time in my life I’ve ever been thankful for Republican goofiness.
Judge Feldman’s ruling has been the only one of 40 state and federal decisions to go against marriage equality since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act in June 2013. The Supreme Court may soon choose to hear any of the state marriage cases, and the outcome is far from certain. That’s the point of having an appeals process, I suppose, but it doesn’t make me rest easy.
No matter what anyone else says, however, my spouse, son, and I will always be a family to each other. At the same time, I want the benefits and protections that legal marriage offers. And with a son entering middle school and a phase of life where social pressures often increase, I recognize the need for marriage so that he doesn’t feel that his family is second-tier in any way. Even if my spouse and I are married in our home state, we are not truly equal if our marriage is not recognized across the country.
I have to put my faith, then, in Judge Posner and the many other judges — Republican and Democrat — who have been defending our families, and hope that their wisdom percolates up to our nation’s highest court. They may be articulating something we already know in our hearts — but isn’t a judiciary with a heart as well as a mind really what we should aspire to in a country dedicated to life, liberty, and the pursuit of happiness?
