Why is there a gulf between those who see same-sex marriage as an impossible legal and cultural revolution, a bridge too far, and those who see it as the logical next step on a path well-trodden in family law? In part, it is the difference in perspective between those familiar with classical expressions of the goods and goals of marriage found in over a century of Supreme Court decisions, and those with their eyes fixed upon more recent legal developments that call those goods into question or ignore them.
Those who champion marriage between a man and a woman would like to see the Supreme Court settle the matter according to a long series of precedents treating procreation and child-rearing as primary state-recognized goods of marriage. But given that one ought to be realistic about judicial willingness today to ignore precedent in favor of some perceived zeitgeist, an additional strategy to preserve the link between marriage and children in the Court’s reasoning is warranted.
This strategy would show, first, how the path of divorcing marriage from children—a path taken to its logical end by same-sex marriage—not only disadvantages children, but is already helping to effect troubling social divisions between the more and less privileged in the United States. The persistence of such divisions could begin to suggest, falsely, that the well-off and the poor, the more educated and the less educated, the majority and various minorities, do not share the same fundamental nature where marriage and parenting are concerned. Second, such a strategy would highlight the relatively recent willingness among scholars and lawmakers to come to grips with the fallout of “disestablishing” the interrelated goods of marriage and effective parenting, and to begin proposing reforms. This is not the time, therefore, to ignore or deny the robust empirical foundations of such reform efforts, via legally redefining “marriage” to exclude its intrinsic orientation to children. A brief look at our Supreme Court’s longstanding positions on the meaning of marriage (in this first of a two-part series), followed by a look at the whirlwind of family law developments from the 1970s to today (in the second part), will suffice to sketch the argument I am proposing.
A preliminary note: It is important to understand that family law is made in large part at the state level and, regarding marriage, consists not in lengthy disquisitions on the meaning of marriage, but rather in brief lists of the necessary preconditions for entering into it. States’ lists are similar. To enter marriage, there must be two persons: of opposite sexes (in the vast majority of states), of sufficient age, not related within prohibited degrees of consanguinity, free to marry, capable of marital consent, etc. On the one hand, state laws conditioning entry into marriage are fairly laissez-faire. On the other hand, all states signal the importance of marriage by refusing to acknowledge purely “private contracts” to marry. Rather, the state imposes terms upon marrying couples—a set of mutual rights and obligations with which they are not even likely familiar. Even when couples make prenuptial agreements, the state constrains their contents in the interests of fairness to the adults and solicitude for children.
The federal government tends to “make family law” when it feels threatened by developments in the states. Increasing rates of nonmarital births in the 1970s and 1980s, for example, and the resulting astronomical federal welfare expenditures, led to a series of federal child support laws, programs about preventing premarital sex and pregnancy, and later initiatives encouraging stable marriage and fatherhood. The latter, in particular, were grounded upon the growing body of data linking marriage with child well-being. The Defense of Marriage Act in the 1990s sprang from fears that one state’s approval of same-sex marriage would lead to demands for interstate and federal same-sex marriage recognition. For the most part, however, federal “characterizations” of the meaning and importance of marriage appear most often in a long series of Supreme Court cases concerning the constitutionality of various state laws affecting marriage or parent-child relationships. While a complete history of these rulings is not possible here, I will characterize their leading messages.
The first message, and the most plain, coming from the Supreme Court concerns the relationship between marriage and the birth of children. While it is impossible to disentangle completely this state interest from its interest in the healthy formation of children within marriage, still it is possible to discern it. In a late nineteenth-century case refusing to recognize a First Amendment right to practice polygamy, for example, the Court wrote that: “Upon [marriage] society may be said to be built” (Reynolds v. United States). Nearly 100 years later, in a case striking down a law banning interracial marriage (Loving v. Virginia), the Court referred to marriage as “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
In several cases from the late nineteenth century to 1967, the Supreme Court revealed in a different fashion its understanding of the link between marriage and children: in cases where only a right to marry was at stake, or only a right respecting childrearing, the Court would nevertheless speak of the two interests as a pair. The plaintiffs in Loving asserted a right to marry as against antimiscegenation laws, and still the Court referred to marriage as necessary for “our very existence and survival.” Skinner v. Oklahoma concerned a law punishing certain felons with forced sterilization, but the opinion spoke of “marriage and procreation” as basic rights. In Meyer v. Nebraska, the case vindicating parents’ constitutional right to instruct their children in a foreign language, the Court referred to citizens’ rights “to marry, establish a home and bring up children.”
The state’s interest in linking procreation with marriage is also shown by the history of laws discouraging sexual intimacy and procreation between the unmarried, while protecting it between the married. Today, laws punishing adultery, fornication, or cohabitation rarely exist or are enforced. Still, even in the 1965 Supreme Court decision granting married persons the constitutional right to access birth control, a concurring opinion could observe: “It should be said of the Court’s holding today that it in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct. . . . But the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected” (Griswold v. Connecticut).
A second prominent theme in the Supreme Court’s marriage jurisprudence is the importance of the marital family for forming and educating the citizens necessary for the continuation of our democratic society. In the 1879 polygamy opinion Reynolds, for example, the Supreme Court opined:
For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, … than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.
The Reynolds case also contains a less frequently noted observation linking the shape of marriage and the shape of society: “According as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. … Polygamy leads to the patriarchal principle, and, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.”
In 1943, in Prince v. Massachusetts, the Court not only affirmed parents’ authority over their children within reasonable limits (here, obedience to labor laws), but more importantly for our purposes, characterized their authority as a function of their responsibilities to children and to society, writing: “A democratic society rests, for its continuance, upon the healthy well-rounded growth of young people into full maturity as citizens, with all that implies.” An even more pointed expression of the economy of adults’ rights respecting children appeared in the case vindicating parents’ constitutional right to educate their children in religious schools. Nearly echoing John Locke’s observation in his Second Treatise on Government—“The Power, then, that Parents have over their Children, arises from that Duty which is incumbent on them, to take care of their Offspring”—the Supreme Court wrote in Pierce v. Society of Sisters that “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
As recently as 1983, in the single father’s rights case Lehr v. Robertson, the Court even more explicitly stated that “the Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed.” It furthermore linked marriage and marital parenting with facilitating citizens’ ability to self-govern. Refusing to treat a single father identically to a married father in terms of rights respecting the child, it wrote that “marriage has played a critical role … in developing the decentralized structure of our democratic society. In recognition of that role, and as part of their general overarching concern for serving the best interests of children, state laws almost universally express an appropriate preference for the formal family.”
In sum, our Supreme Court has time and time again, and in an axiomatic fashion, expressed the state’s interests in marriage as: children, their formation, and the building up of a society of citizens well-prepared for self-government. In the process of recognizing various rights claimed by parents respecting their children, the Court has further observed that to the extent parents have such rights, it is because they have duties toward children. Those who demand that the state recognize, as marriage, partnerships of two persons of the same sex, ignore or deny the long line of Supreme Court decisions affirming the links between the state’s interests in marriage and child-welfare and social health. Their insistence, however, that marriage is about the individual self, seeking satisfaction respecting matters related to sex, romance, and parenting, is not new to family law. Same-sex marriage proponents are only the most recent in a long line of voices urging American society to divorce children from marriage, and to vault adults’ interests over children’s needs. The second part of this article will treat this trajectory in family law.
Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. This is the first in a two-part series. Read the second installment here.