The first part of this series summarized two centuries of Supreme Court opinions identifying the state’s interest in marriage with its interests in children, their formation for self-government, and the building of a decentralized society. Today, however, those who demand state recognition of same-sex marriage either ignore or minimize the relationship between marriage law and children’s welfare. In light of the Supreme Court decisions discussed here yesterday, this seems a foolish strategy, bound to fail.

Yet it is making some headway. To understand this, is it necessary to grasp how myriad family law developments over the last forty to fifty years have ignored or minimized children’s interests, thus paving the way for the arguments same-sex marriage proponents advance today. For example, as against the idea that marriage and child well-being go together, state laws approving no-fault divorce and normalizing cohabitation (by enforcing cohabitation agreements) do not take children’s presence in a household into consideration at all. Rather, they allow more and more children to be reared outside of households containing their married, biological parents. They also expose more children to instability in living arrangements, and to stepparents and new boyfriends, each of which is, on average, correlated with increased risks to children’s safety and to their emotional and educational achievement.

Against the notion that marriage is the place where society is born and formed, federal constitutional law concerning birth control and abortion from the 1970s through the 1990s stridently instructed us that decisions about procreation are about the individual, not the married couple and not the child. In the 1972 “birth control for singles” case, Eisenstadt v. Baird, the Court bluntly opined that “the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In the 1992 Planned Parenthood v. Casey abortion decision, the Court went even further, declaring that the liberty interest in deciding to abort one’s own child is, at its core, a matter of “defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”

Finally, against the idea that parental rights are derivative of parental duties to children, there are not only the counter-examples of no-fault divorce laws and the legal right to abortion, but also the fact that neither state nor federal law meaningfully regulates adults’ access to assisted reproductive technologies, including to donor gametes, deferring completely to adult desires for children versus children’s need to know and be loved by their own mother and father.

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A look at the legislative transcripts or the judicial opinions or other sources that brought each of these legal regimes into being indicates how little children’s fates were considered from the very start. The legislative hearings leading to no-fault divorce, for example, are replete with references to children’s resiliency, or how the facilitating of their parents’ wishes for a divorce will indirectly lead to children’s happiness.[1] The California Supreme Court opinion that started the ball rolling toward many states’ recognizing and enforcing cohabitation agreements (Marvin v. Marvin, 1976) paid no attention to the possible effects upon children of the greater normalization of cohabitation. Some of the most popular assisted-reproductive technologies were not even tested on animals before being used to create thousands upon thousands of human children. And of course, nothing could have been further from the minds of the judges who gave us Roe and Casey than the well-being of the child on the other end of the abortion instruments.

Given this history, it should surprise no one that in the most recent family law controversy implicating children’s well-being, same-sex marriage proponents have devoted so little attention to the question of children. It shouldn’t surprise us when the Iowa Supreme Court relegates to a footnote its assurances that children will do just as well with a father or a mother as without one (Varnum v. Brien, 2009), or when that California district court opinion in the Proposition 8 case (Perry v. Schwarzenegger, 2010) concludes that opposite-sex marriage is merely an “artifact” of pernicious sex-role discrimination within marriage and society, a discrimination that is now passé. It should sound perfectly mainstream when members of the Massachusetts legislature (before refusing to allow citizens the right to vote on same-sex marriage) called marriage a “right” that “individuals” have, a matter allowing people to love one another, or of “guarantee[ing] the greatest amount of happiness to the most people.”[2]

Are these conclusions about marriage the inevitable follow-up to lawmakers’ recent dissociating of marriage and child-rearing? What about the vastly different concerns featured in over a century of Supreme Court opinions linking the state’s interest in marriage to children and their formation? There are several possible responses. Technically speaking, of course, the Court’s decisions from Reynolds to Lehr have not been overturned; they remain good law. But proponents of same-sex marriage could argue that the language in these cases linking marriage with parenting is dicta—i.e., not essential to their holdings—or even merely historically conditioned expressions of a moral sensibility bearing no relation to our current age. Maybe. Maybe today’s Supreme Court would accede to such a characterization. After all, look at its opinion (albeit over a stinging dissent) in Lawrence v. Texas (2003) granting constitutional status to sodomy, in response to perceived current trends here and abroad.

In light of the mode of reasoning adopted in Lawrence, then, those loath to see marriage and children divorced from one another would be wise to adopt an additional strategy. They should argue that the Supreme Court was more right than it even knew during the past two centuries, when it identified the state’s interest in marriage as children and their formation. In fact, today, more than ever before, we have a substantial body of literature linking children’s—and communities’—flourishing with the stable presence within a family of married, biological parents. Two additional developments also argue for reappropriating and reinvigorating Supreme Court precedents on marriage, rather than moving in the direction suggested by the last few decades’ retreat from child-centered marriage.

First, the most vulnerable members of society appear to be paying the highest price for this retreat. African Americans, Hispanics (our newest large immigrant group), the poor, and the less educated are suffering the most notable financial, emotional, and educational fallout. They now marry less, cohabit more, bear more children out of wedlock, and divorce more often than more privileged citizens, with the result that their children, and perhaps even their grandchildren, risk becoming part of an entrenched underclass in American society. To allow this to continue is to risk the rise of the perception that Americans are different from one another at very basic levels—in our fundamental needs for permanent and faithful love, for support when we are very young or very old, for harmony between the sexes and the generations. This is a very dangerous kind of separation between fellow citizens and human beings.

Second, it should be pointed out that the family law developments of the last forty to fifty years, described above, often proceeded on the claim that children would ultimately benefit from each of them. In other words, even those who were busy effectively dismantling family law’s orientation to children’s well-being were not deaf to the tradition embodied in the Supreme Court’s marriage and procreation cases. Rather, they argued that children would be happier when their parents were happier—because their parents were getting a divorce, or cohabiting, or living in whatever arrangement they chose. They argued that children would be happier if “wanted,” and what could be more wanted than a very planned, well-timed child, or even a “designed” child? They argued that cohabitation should lead to more stable marriages.

Now that each of these claims has been disproved, or at least called into serious question by respected research, there are proposals—for the first time in a very long time—to reform various family laws in order once again to take account of children. More scholars are proposing and more states are considering requiring sperm donors to provide information allowing their biological children to find out more about them. There are active efforts to promote legislation to slow down the divorce process, especially for parents of minor children. Scholarship about the dangers posed to children by cohabitation is gaining a national audience. In short, current reform efforts provide an additional reason to refuse to deem the last half-century of family law “progress,” let alone to take their “adults-first” or “adults-only” rallying cry any further, to its logical conclusion in same-sex marriage.

 This is the second in a two-part series. Read the first installment here.

[1] See Helen M. Alvaré, “The Turn Toward the Self in the Law of Marriage and Family: Same-Sex Marriage and its Predecessors,” 16 Stan. L. & Pol’y Rev. 135, 143-53 (2005)

[2] See, supra, Helen M. Alvaré, “The Turn Toward the Self in the Law of Marriage,” 174-176 and notes therein.