As debates currently rage about budget deficits, debt ceilings, and jobs, I am pleased that the Senate is discussing what are arguably the two most important jobs in our society—the jobs of mothers and fathers. The Defense of Marriage Act (DOMA) gives us a chance to think about the roles of mothers and fathers in our society, and also to consider a question often overlooked in these debates: why is government in the marriage business?
Congress enacted DOMA in 1996 by an 84% margin, demonstrating broad bi-partisan support. When it did so, Congress stated that “at bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.” This statement still holds true. As evidenced by the most extensive national research survey on Americans’ attitudes about marriage, 62% of Americans agree that “marriage should be defined only as a union between one man and one woman.”
What DOMA addresses is not just a law or creature of statute, but a social institution that has universally crossed all political, religious, sociological, geographical, and historical lines. As the philosopher and self-described atheist Bertrand Russell wrote, “But for children, there would be no need of any institution concerned with sex.” He continued, “it is through children alone that sexual relations become of importance to society, and worthy to be taken cognizance of by a legal institution.” Renowned anthropologist Claude Levi-Strauss observed that “the family—based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children—appears to be a practically universal phenomenon, present in every type of society.”
From lexicographers who have defined marriage, to academic scholars who have explained marriage, to legislatures and courts that have legally recognized marriage, all demonstrate that a key purpose of marriage is to benefit society by procreative relationships. Marriage between a man and a woman is a long-standing, world-wide institution that is a building block of society.
Marriage doesn’t proscribe conduct or prevent individuals from living how they want to live. It doesn’t prohibit intimate relationships or curtail one’s constitutional rights. Federal legislation that protects marriage as a binding, exclusive, and procreative relationship has the public purposes of marriage—most notably, to continue human existence—at heart. The effort to repeal DOMA, however, tries to replace these essential public purposes of marriage with various private purposes. Our discussion of DOMA and its repeal should not be about the private reasons why individuals marry, why the institution of marriage benefits any particular couple, or why any two people should or should not marry. Instead, we must speak about social policy for our country as a whole and the government’s interest in marriage as an institution.
Due to the public nature of the government’s interest in marriage, a couple’s entrance into marriage has never been conditioned on the couple’s ability and desire to find happiness together, on their level of financial entanglement, or on their actual personal dedication to each other. Because the scope of due process rights is determined not by anyone’s individual circumstances, but by the country’s history, traditions, and legal practices, marriage laws stem from the fact that children are the natural product of sexual relationships between men and women, and that both fathers and mothers are viewed to be necessary and important for children. Thus, throughout history, diverse cultures and faiths have recognized marriage between one man and one woman as the best way to promote healthy families and societies.
Moreover, studies and data from the social sciences have long demonstrated that for children, the ideal family structure is one headed by two opposite-sex biological parents in a low-conflict marriage. Even President Obama supports active and involved fatherhood for all children; he knows all too well the pain of not having a father during his childhood, even though he was raised by a loving mother. As he stated:
We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home, or become teenage parents themselves. And the foundations of our community are weaker because of it.
Likewise, a child psychologist who testified in support of a lawsuit that would judicially impose same-sex marriage on California citizens wrote, “Both mothers and fathers play crucial and qualitatively different roles in the socialization of the child.”
But advocates for redefining marriage are asking you to cast aside the natural attachment of parents to their own children, and the natural desires of children to know who they are and where they came from. These advocates are asking the whole of society to ignore the unique and demonstrable differences between men and women in parenthood: no mothers, no fathers, just generic parents.
But there are no generic people. We are composed of two complementary, but different, halves of humanity. As Rutgers University sociologist David Popenoe puts it,
We should disavow the notion that “mommies can make good daddies,” just as we should disavow the popular notion . . . that “daddies can make good mommies.” . . . The two sexes are different to the core, and each is necessary—culturally and biologically—for the optimal development of a human being.
The Senate should also disavow the idea that since the Obama administration refused to defend DOMA, its repeal is somehow a constitutional mandate. In 1967, the Supreme Court decided the case of Loving v. Virginia. In the Loving case, the Supreme Court struck down as unconstitutional a race-based marriage law that prohibited whites from marrying anyone of color. In so ruling, the Supreme Court called marriage “fundamental to our very existence and survival,” because of its procreative aspects. The procreative nature of marriage is what brought about miscegenation laws in the first place. The Court’s ruling returned marriage in the United States to its original status in common law—an institution not to be manipulated by racial prejudice, but to be honored as the union of one man and one woman.
Those who push for redefining marriage often cite Loving to support their arguments. But in doing this, they miss the Court’s link between marriage and procreation. Even the Department of Justice, in its new refusal to defend DOMA, does not cite the Loving case as support for its new anti-marriage position.
Same-sex marriage supporters also routinely overlook a noteworthy court case argued and decided in 1972, five years after the Loving decision. The Supreme Court dismissed an appeal from the Minnesota Supreme Court that claimed an alternate definition of marriage was a basic human right. In Baker v. Nelson, the Minnesota Supreme Court rejected claims for same-sex marriage and held that “in commonsense and in constitutional sense, there is a clear distinction between marital restriction based merely upon race and one based upon the fundamental difference in sex.” The Court’s rejection also emphasized a defining link between marriage and “the procreation and rearing of children.” The United States Supreme Court upheld the Minnesota Court’s decision. Not a single Justice of the United States Supreme Court found the constitutional claims for an alternate definition of marriage substantial enough even to warrant a review.
Since the Baker case, every appellate court in this country, both state and federal, that has addressed the validity of marriage as the union of one man and one woman, under the United States Constitution, has upheld the institution as rationally related to the state’s interest in responsible procreation and child-rearing. And while some may argue that times have changed, they cannot credibly argue that humanity, as a gendered species, has changed. Men and women still compose the two great halves of humanity. Men and women are still wonderfully and uniquely different, and men and women still play important and irreplaceable roles in the family. As stated by the Supreme Court, “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables.” “‘Inherent differences’ between men and women, we have come to appreciate, remain cause for celebration.”
Without question, the overwhelming majority of people on both sides of this debate are good and decent Americans, coming from all walks of life, all political parties, all races and creeds—but humanity remains unchanged as a collection of men and women. And since it will always be true that children are the product of sexual relationships between men and women, and that men and women each bring something distinctive to the table of parenting, this government maintains a compelling interest in protecting and preserving the institution of marriage as the union of one man and one woman. Marriage between a man and a woman naturally builds families—mom, dad, and children—and gives hope that the next generations will carry that family into the future.
Austin R. Nimocks is Senior Legal Counsel for the Alliance Defense Fund. Read the original Senate testimony—with full citations—here.
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