There’s lots of analysis zipping around about yesterday’s U.S. Supreme Court arguments on marriage equality. We won’t know the outcome until June—but I’m heartened by this exchange about the role of children.
The discussion happened between Michigan Special Assistant Attorney General John Bursch, arguing against marriage equality, and several of the justices. Bursch says children are best raised within a marriage—but apparently doesn’t want the children of same-sex couples to reap that benefit. He admits that, on the one hand, “Same-sex couples can be bonded to their children. We hope that’s the case,” and that someone can adopt regardless of sexual orientation. On the other, he tries to deny same-sex couples marriage rights because that would apparently de-link the connection between marriage and biological children and lead to more out-of-wedlock children from different-sex couples. He tries both to praise adoptive parents and simultaneously to stress that marriage is all about strengthening the bond between parents and their biological children.
Justices Sotomayor, Kagan, Kennedy, Breyer, and Ginsberg sound like they’re not buying it. They don’t reach the same level of delightful snarkiness that Judge Richard Posner did in his 7th Circuit marriage ruling, but they seem to have little patience with Bursch’s shoddy reasoning.
From the Supreme Court transcript. My emphasis.
MR. BURSCH: The premise is that we want to encourage children to be bonded to their biological mother and father. We don’t deny at all — disagree at all that same-sex couples can be bonded to their children. We hope that’s the case.
JUSTICE KAGAN: Well, you see, this is what I think is — is difficult for some people with your argument, is that it’s hard to see how permitting same-sex marriage discourages people from being bonded with their biological children. So if you would explain that to me.
MR. BURSCH: Because if you’re changing the meaning of marriage from one where it’s based on that biological bond to one where it’s based on emotional commitment, then adults could think, rightly, that this relationship is more about adults and not about the kids. Not the case with the Plaintiffs in this case. We all agree that they are bonded to their kids and have their best interest at heart. But when we’re talking about, Justice Kennedy, over decades, when laws change, when societal views on marriage change, there are consequences to that. . . .
JUSTICE BREYER: It’s the same point. What directly is your response to the fact that if we assume a basic purpose of marriage is to encourage an emotional and rearing bond between parents and children, that allowing gay people to marry will weaken it? After all, some non-gay couples have children, many, and some don’t. And some gay people marry and have children, and some don’t. So what’s the empirical connection? That’s what I have a problem with in your argument.
MR. BURSCH: Justice Breyer, it’s relatively simple. If you de-link marriage from creating children, you would expect to have more children created outside the bonds of marriage. . . . You’re — you’re talking about the State’s interest in bonding parents and children generally. . . .
JUSTICE BREYER: But I’ve never heard of a State that said, it is our State policy that we don’t like adoption. I’ve heard of many States who say it’s very important to treat adopted children the same way that you treat natural children. I’ve never heard the contrary.
MR. BURSCH: Yes, we — we agree.
JUSTICE BREYER: So if your argument depends upon that, I’m stuck.
MR. BURSCH: Let me be very clear about that. We love adoption. Adopted parents are heroic. There you are talking about children who have, for whatever reason, death, disability, abuse, have already been separated from their biological mom and dad, and so when we’re talking about adoption, that’s an entirely different social issue that gets solved with different State interests. What we’re talking about here is that world where there is no marriage —
JUSTICE KAGAN: But, you know, they are connected, right? Because if you think about —
MR. BURSCH: Oh, they’re related. Sure.
JUSTICE KAGAN: If you think about the potential — who are the potential adoptive parents, many of them are same-sex parents who can’t have their own children, and truly want to experience exactly the kind of bond that you’re talking about. So how does it make those children better off by preventing that from happening?
MR. BURSCH: Well, we allow someone regardless of their sexual orientation to adopt. That’s, again, a very different —
JUSTICE KAGAN: Yes. But you, yourself, are saying that the marriage — the — the recognition of marriage helps the children, aren’t you? I mean, you’d rather have — the whole basis of your argument is that you want children in marital households.
MR. BURSCH: Correct. We — we want it to be the glue. That’s correct.
JUSTICE KAGAN: More — more adopted children and more marital households, whether same sex or other sex seems to be a good thing.
MR. BURSCH: Well, that — that’s a policy argument, and reasonable people can disagree simply and compassionately.
JUSTICE KAGAN: Well, I’m just asking based on your policy how it’s not a good thing. I’m not trying to put words in your mouth. I’m just saying if — if — it just seems to me inexplicable given what you’ve said are your policy interests.
MR. BURSCH: Because if you change the societal meaning of what marriage is — and society has already started to move away from what we always understood marriage to be, that linkage between kids and their biological mom and dad. The more that link is separated, the more likely it is that when you’ve got an opposite-sex couple, that link will not be maintained, because it’s more adult-centric, and it’s less child-centric. . . .
JUSTICE GINSBURG: We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down. And no State was allowed to have such a — such a marriage anymore. Would that be a choice that a State should be allowed to have?
MR. BURSCH: No.
