The Institution Formerly Known As Marriage?

This essay is a response to the article below dealing with the Iowa Supreme Court ruling legalizing same-sex marriage. That article is printed in black and can be found on the Witherspoon Institute's web site. Our imbedded responses will be in this color. All formatting and spelling in the original are preserved.

The Institution Formerly Known As Marriage

by Jennifer Roback Morse
April 24, 2009
The Iowa court's recent decision does not simply broaden marriage, it radically changes its nature. While marriage previously served public purposes of attaching mothers and fathers to their children and one another, now marriage merely serves as affirmation of adult feelings.
Same-sex couples also have children and by allowing such couples Civil Same-Sex Marriage, society retains the benefits of attaching the parents to the children and to one another.

The Iowa Supreme Court recently proved that the critics of same-sex "marriage" are correct: we are not being urged to make marriage more inclusive, but to radically redefine the nature of marriage itself. With its decision, the Iowa Supreme Court covertly but profoundly changed the meaning of marriage. The Court abolished the essential public purpose of marriage, and replaced it with a new understanding of marriage that is neither essential nor public. The Institution Formerly Known as Marriage will be an empty shell in Iowa. As the movement to redefine marriage spreads across the country, citizens should look to Iowa to see what this actually entails.
Has Marriage become an "empty shell" in Massachusetts where Civil Same-Sex Marriage is legal? What about the other states which recognize such marriages? What tragedies have befallen those societies? Don't worry, the sky is not falling. Covertly? I didn't realize that the Court met in secret and decided issues without considering the facts in the case. Please, give us more light than heat.

The essential purpose of marriage is to attach mothers and fathers to their children and to one another. Absent this purpose, we would not need marriage as a distinct social institution. Human beings are not born as rational autonomous actors, they are the immature products of sexual relations between a man and a woman, and they need the assistance of adults to survive. Marriage exists, in all times and places, to solve this social problem. If our offspring were born as adults, ready to live independently, or if we reproduced through some form of asexual process, we would not need anything like marriage.
Civil Same-Sex Marriage DOES attach the parents to their children and to one another. It also provides an institution in which the children are raised and nurtured and turned into responsible citizens.

Marriage also has a profoundly social purpose. Marriage creates its own small society consisting of mother, father, and children. That small social unit contributes to the larger society by creating a functioning future - the next generation. Everyone benefits from having a next generation that can sustain the society and keep its institutions going. Even when I personally am old, and even if I have not had any children myself, I benefit from the fact that younger people are building cars and houses, providing medical and legal care, starting new businesses, and running old ones. In modern developed countries, the family also saves the state a lot of money by taking care of its own dependent young, rather than foisting that responsibility onto the taxpayers. Thus, the benefits of marriage go far beyond the benefits to the individual members of the family.
The exact same things happen in same-sex households. Without the legal benefits and protections legal marriage provides, these families and children will remain less secure and therefore more likely to be reliant on the taxpayers. How does denying them marriage help these children, society and the taxpaying citizens?

So, what did the Iowa Supreme Court have to say about the purposes of marriage? Did they view the requirement that marriage be between a man and a woman as a violation of the principle of equal protection? Indeed. As the Court argued, "Equal protection demands that laws treat alike all people who are 'similarly situated with respect to the legitimate purposes of the law.'" If the Court can convince itself that the dual gender requirement bears no relationship to the State's purpose in having a marriage statute in the first place, then that requirement violates the Equal Protection clause of the Iowa Constitution.
If one objectively looks at the issue of "Legal Scrutiny", it is easy to see that laws prohibiting Civil Same-Sex Marriage fail to meet the relevant levels of legal scruntity - (Heightened/Intermediate Scrutiny and Strict Scruntity). There is no legal or rational argument to deny same-sex families their "equal protection" rights.

It should be evident that if the purpose of marriage is to attach mothers and fathers to their children and to one another, then the dual gender requirement is perfectly permissible. Same-sex couples and opposite-sex couples are not the same with respect to this purpose. The Court had to come up with a very limited understanding of the purposes of marriage in order to maintain that opposite-sex and same-sex couples are in fact similarly situated.
They ARE similar. The problem with the above line of reasoning is that those making it never want to apply this self same logic to heterosexual couples who are unable to bear children between them and instead must adopt. Infertile people can still marry. Quadriplegics can still marry. People who have had vasectomies or hysterectomies can still marry. Adopted children do not share the genetics of either partner. How is this different from same-sex couples who likewise share no DNA with their adopted child? Infertile couples will sometimes use a sperm donor or surrogate mother so that the resulting child will be at least genetically related to one parent. Same-sex couples frequently do this as well. What is the reason to deny same-sex couples legal marriage when they are basically no different than infertile couples?

The Court enumerated several purposes directly. Marriage provides an institutional basis for defining relational rights and responsibilities; marriage allows people to pool their resources; marriage recognizes people's commitments; marriage provides comfort and happiness; marriage is a status, not a contract.
These all apply to same-sex couples as well.

But these reasons do not explain why we need marriage in particular. I have a relationship with my next-door neighbor. My family pools resources with other members of a boat club. I have commitments to my employees and business associates. A pet brings me comfort and happiness. We do not need the unique relationship called marriage for any of these purposes.
You have contractual arrangements with your employees and business associates and perhaps even the other boat club members. These need legal recognition. You have no such contract with your dog since they can't sign contracts. You also have a need for a legally recognized contract with your spouse and children. Legally recognized marriage provides such. Same-sex couples have this exact same need, yet are denied marriage and are therefore less stable and more likely to be burdens on the taxpayers. There is NO objective reason for that.

The Court alluded to several other possible purposes, without including them within its list of state purposes. "Therefore, with respect to the subject and the purposes of Iowa's marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples."
Bingo, just as we stated above. The Court's logic is clear and compelling.

The Court does not seem to realize that if these purposes really exhaust the list of legitimate state purposes of marriage, then there is no reason to have marriage as a distinct legal structure in the first place. Moreover, these are all private purposes, not public purposes, of marriage.
No, "raising families" has a very "public purpose" as you stated above. Binding all family members to each other thereby strengthening them and providing a safe environment for the raising and civilizing of any children to become responsible citizens. Why do heterosexuals need this but the parents and children in same-sex families don't?

The same-sex couples before the Court claim to be committed and to love each other. Why do we need marriage for that? I'm committed to my sister. I love my best friend. Are we second class citizens because we are not married to each other? There is no state purpose whatsoever to be served by my having some legal statement or affirmation attached to my love for my sister. Besides, who really wants the Court, or the state or anyone else saying that our love is important to the state? People's feelings are none of the state's business.
Agreed. There is no objective purpose for such. However, "raising families" has a very "public purpose" as you stated above. Binding all family members to each other thereby strengthening them and providing a safe environment for the raising and civilizing of any children to become responsible citizens. This applies no matter whether it is same-sex or opposite-sex.

The Court seems to understand this, for it gently and subtly elides the key issue of marriage law when it goes on to say: "Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children . . . just as it does when that framework is provided for opposite-sex couples." But wait a minute: How in the world does a same-sex couple obtain a child that is "theirs?"
In the same manner infertile heterosexuals, quadriplegic heterosexuals and heterosexuals who have had vasectomies or hysterectomies do - via adoption, artificial insemination or a surrogate mother. Are these kids not really "theirs"?
This is precisely the way in which same-sex couples differ from opposite-sex couples. No child is born from a homosexual union. A child born to one of them has another parent who has been quietly escorted into the lab or the backdoor, to make the conception possible. That person is quickly escorted right back out the door, before he can claim any parental rights, or the child can claim any relational rights...
And how is different from the infertile heterosexuals, quadriplegic heterosexuals and heterosexuals who have had vasectomies or hysterectomies? They too use adoption, artificial insemination or a surrogate mother ushering one or both biological parents out the door with no legal rights.
...Some of us believe that these two people, the child and the opposite-sex parent, require and deserve some protection. But the Court of Iowa does not think them even worth mentioning.
Do they need special protections or special rights when being the children of infertile heterosexuals, quadriplegic heterosexuals and heterosexuals who have had vasectomies or hysterectomies? Again, there is no difference.

The social purpose of marriage has always been to attach mothers and fathers to their children, and to each other. This universal social purpose does not even make it onto the Iowa Court's short list. The reason should be obvious: opposite-sex couples and same-sex couples are not similarly situated with respect to that purpose of marriage.....
They are EXACTLY the same. Please explain how same-sex families differ from the families of infertile heterosexuals, quadriplegic heterosexuals and heterosexuals who have had vasectomies or hysterectomies? Per your logic, since these heterosexual couples can't have kids that are really "theirs", they, like the same-sex couples, cannot fulfill "(t)his universal social purpose" of marriage. Why do they need/deserve marriage if they can't produce offspring?
...If the Court found that attaching children to their parents and parents to one another is a purpose of marriage, they would be unable to sustain their claim that man woman marriage violates the principle of equal protection under the law.
If "attaching children to their parents and parents to one another is a purpose of marriage" is vital and requisite condition of marriage, how does this not apply to same-sex families? Isn't society strengthened when strong family ties are valued and encouraged? Aren't the families strengthened? Aren't the children covered by the same umbrella of rights and benefits that protect the children in opposite-sex homes? Why do the children of heterosexual families need these protections but the children of same-sex families don't? How is society protected and advanced by such an arrangement?

Society needs marriage because children have rights to care from their parents, rights which they can not defend on their own. Societies create marriage to pro-actively protect the legitimate entitlements of children, and to provide for the future of the society. According to the Supreme Court of Iowa, these provisions for children are no longer the purpose of marriage. We are left to guess as to how this truly essential public function will be performed, now that the Court has surreptitiously removed it from the list of marriage's jobs.
Those things are only a part of marriage. They are also a non-essential part for those who remain childless by choice or circumstance. Such people need/deserve marriage FAR less than same-sex families with children. Legally, marriage is primarily about defining rights and responsibilities regarding tax issues, probate/inheritance issues, child custody issues, etc...All of those issues need to be addressed by couples, both same-sex or opposite-sex. Marriage is an easy way to take care of all of these issue all at once.

Iowa is a relatively homogenous and prosperous state. This newly created lacuna in the purposes of the law may not harm Iowa much at first. But other states have more diversity of opinion and practice about socially acceptable behavior, as well as greater economic and social stresses on married life and childrearing. In those states, the cost of redefining marriage is likely to be more pronounced and immediate.
Not allowing same-sex families their right to marriage is already causing "greater economic and social stresses on married life and childrearing" than experienced by opposite-sex couples. Allowing same-sex families and their children the protections already given to opposite-sex couples, society and families will be strengthened and will prevent many same-sex families from being dependent upon the taxpayers. Everybody wins! Please tell us how "diversity of opinion and practice about socially acceptable behavior, as well as greater economic and social stresses on married life and childrearing will be increased" if same-sex families are given societal protections that will ease those "economic and social stresses."

In sum, the Court has elevated the private, inessential purposes of marriage to the highest point in the hierarchy of values of marriage. Given this new understanding, neither the longevity of marriage, nor fidelity within marriage can remain as important values. By the time the opponents of conjugal marriage are finished with their redefinitions, marriage will be little more than a five-year renewable-term contract. The Institution Formerly Known as Marriage will be nothing but a couple of individuals, loosely stapled together by the state.
No, the Court simply recognized that marriage ISN'T only about couples producing children biologically related to both parents. They recognized that there is no objective justification to infringe upon civil rights of others, especially when the complainers would scream bloody murder if marriage was denied to those who remain childless by choice or circumstance. What if marriage contracts would be revoked by the state if the couple hasn't had a successful pregnancy by their fifth wedding anniversary? If they can't have kids that are really "theirs", they don't deserve the privileges and protections which marriage offers. If they can't or won't fulfill the "intended purpose of marriage", what reason do they have to complain if the state revokes their married status?

Advocates of natural marriage, as opposed to genderless marriage, believe that society needs marriage to be a child-centered, gender-based social institution. We have been arguing all along that same-sex "marriage" will be a gender-neutral institution, in which children are only a peripheral concern. When the Supreme Court of Iowa established same-sex "marriage" by judicial decree, they proved our point for us.
This statement is laughable. Since same-sex couples have to jump through the hoops of the adoption process or go through the risk and expense of surrogate mothers/sperm donors, it isn't hard to believe that such kids are very much wanted and that that family will have a "child-centered" marriage. Who appreciates their kids more - couples that get pregnant at the drop of a hat or couples that had to give blood, sweat, tears, time and money to have kids? Allowing gays to marry and adopt kids will be a blessing for those kids floundering in foster care. The state will save a LOT of money from this alone. How is society harmed by having more of these happy and loving families? With so many opposite-sex couples CHOOSING to remain childless, society will be blessed by the children same-sex couples bring into this world. But that won't matter much to Dr. Morse who believes that a wealthy, intentionally childless heterosexual couple needs and deserves the rights and protections of marriage far more than any same-sex family struggling to get by while caring for several children without the perks and protections that marriage gives the other couple. What happened to marriage being "child-centered"?

Jennifer Roback Morse, Ph.D., is the Founder and President of the Ruth Institute, a project of the National Organization for Marriage.

Copyright 2009 the Witherspoon Institute. All rights reserved.