First published May 30, 2005, in The New Republic.
In 2003, when a bare majority of the Massachusetts Supreme Judicial Court ordered the state to recognize gay marriages, the three dissenting judges based their opposition largely on children. "It is difficult to imagine a State purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children," they declared. "[A]t the very least, the marriage statute continues to serve this important State purpose."
Nonsense, retorted the four-judge majority: It is the ban on marriage that harms children, namely the children of the plaintiffs and of other same-sex parents. "It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation," ruled the court.
A year ago, in May 2004, the state started marrying same-sex couples, and the country's experiment with legal same-sex marriage began.
Since then, lower courts in New York and California have ruled that same-sex marriage was required by the state's constitution (both decisions are on appeal), and cases are pending in New Jersey and Washington state. More than 40 other states, meanwhile, have preemptively banned same-sex marriage, often by amending their constitutions.
Through it all, both sides have claimed to speak for the interests of children. The Massachusetts argument has become the nation's argument.
Advocates who say that gay marriage is just a matter of civil rights are wrong. It certainly is a civil rights issue, just as it is a moral issue; but it is not only a civil rights or moral issue. It is also a family policy issue - the most important family policy issue now facing the country. Gay marriage is not a civil right worth having if it will wreck straight marriage or leave millions of children bereft. But it won't. In fact, gay marriage's denial, not its recognition, poses the greater risk to American kids.
The 2000 census counted about 160,000 same-sex-couple households with one or more children. Those children, of course, would be directly affected if their parents got married, and there seems to be little dispute that the effects would be positive. Marriage would, to begin with, give their families the additional legal security that marriage provides. The children would have, as Evan Wolfson notes in his book Why Marriage Matters, "automatic and undisputed access to the resources, benefits, and entitlements of both parents."
Marriage law is rich with provisions ensuring that if one spouse meets with death or disability, the other can carry on - for the good of the kids. Moreover, marriage itself makes couples better off. Marriages are more durable than co-habitations. Many gay couples who have wed in San Francisco and Massachusetts have attested that the act and fact of marriage has deepened and strengthened their bond - sometimes to no one's surprise more than their own.
Family stability is very important for children. On average, marriage also makes couples healthier, happier, and wealthier, which must also be good for their children.
In principle, another group of children would also be directly affected, but in a less clear-cut way: additional kids, as it were, who might be raised by same-sex parents as a result of the legalization of same-sex marriage. It seems plausible, after all, that same-sex marriage would reduce the legal and social obstacles to same-sex parenting, and so same-sex parenting might well become more common.
Is that good, bad, or neither? That depends on how good same-sex parenting is for children, and on what the children's real-world alternative would be. The dozens of studies of same-sex parenting to date have found no evidence that children raised by same-sex couples fare worse, on average, than other children.
Same-sex parents may not be a first choice, other things being equal. But other things are rarely equal. Most children come to same-sex couples not from loving opposite-sex homes but from single-parent homes, broken heterosexual marriages or relationships, foster care, foreign or domestic orphanages, or artificial insemination. If they were not with same-sex couples, most of these children either would be in more difficult circumstances or would never have been born at all. If same-sex marriage helps them find secure, two-parent homes, that seems a good thing.
Still, same-sex marriage may send powerful social signals about family structure. Which brings us to the really interesting and perplexing question: How would gay marriage affect the more than 99 percent of children who don't live in same-sex-couple households? To put the question another way: How might homosexual marriage affect heterosexual families?
In academe and among same-sex marriage proponents, the presumption has been that the effects would be insignificant or, on balance, neutral. Same-sex marriage, its advocates say, will not prove to be a big deal for anyone but gay couples. After all, same-sex couples make up only a small percentage of the population. Many Americans do not even know anyone who is openly gay. Thus, after the initial political jolt, straight couples would presumably mostly go on about their lives much as before.
But many people think same-sex marriage would have harmful, even calamitous, effects on children and families - or, as economists would call them, negative externalities: ill consequences befalling people who are not personally involved in the gay-marriage transaction. In Senate testimony last year, Massachusetts Governor Mitt Romney framed the claim this way:
[C]hanging the definition of marriage to include same-sex unions will lead to further far-reaching changes that also would influence the development of our children. For example, school textbooks and classroom instruction may be required to assert absolute societal indifference between traditional marriage and same-sex unions. It is inconceivable that promoting absolute indifference between heterosexual and homosexual unions would not significantly affect child development, family dynamics, and societal structures.
Why? The best version of the argument reasons that same-sex marriage would put opposite-sex and same-sex unions on equal legal footing. This might benefit gay couples and their kids, but it would also signal the law's indifference to family structure - that there is nothing special about families consisting of husband and wife (and thus, often, father and mother).
For the law to lend its prestige and muscle to the proposition that mother-father families are interchangeable with other arrangements would hasten the de-norming of the traditional family. It would, the argument goes, further erode the status of the core family structure, even as the United States faces a widespread problem with fatherlessness and single parenthood.
I think of this as the Gold Seal for Heterosexuals argument. It boils down to the claim that marriage sends powerful legal and cultural messages about social norms and that, by reserving the designation "married" for opposite-sex couples, society bestows a special seal of approval on heterosexual unions, signifying that they remain the ideal family structure.
Gay marriage would make it impossible for marriage law to prefer opposite-sex to same-sex couples. The result would be to weaken or even shatter man-woman-children as familial template. The language would no longer have a word specifically for a male-female union, and how can the culture preserve what is not even in its vocabulary?
Many gay-marriage advocates, and some courts (in Massachusetts and, most recently, in California), reject this argument out of hand as discriminatory. They are too hasty. Not all discrimination is irrational or bigoted. The Gold Seal argument does not justify opposition to civil unions and other nonmarital programs for gay couples - in fact, in its strongest and most humane form, it actively supports civil unions as a same-sex alternative that preserves marriage's special cultural status while meeting the needs of gay couples. This view may not be perfectly egalitarian, but neither is it homophobic. Indeed, it has real weight.
But what if the main cultural effect of same-sex marriage were not to signal indifference to family structure, but to signal a preference for marriage over non-marriage? Then the social externalities of gay marriage would be predominantly positive.
It is not true, as some same-sex marriage opponents have often said, that children need a mother and father. Children have a mother and father. That is how we get children. What children need is a married mother and father. The question is whether gay marriage would improve or damage their prospects.
Getting people to marry is hard. Just having sex is more fun. Just shacking up, as it was once called, is easier. Marriage is under threat, all right. The threat, however, comes not from gay couples who want to get married but from straight couples who either do not get married or do not stay married. A third of American children are born to unmarried parents. The divorce rate has doubled since 1960, and the marriage rate fell 40 percent from 1970 to 2000. Cohabitation rose 72 percent in the 1990s. Twenty-eight percent of young couples aged 18-29 are unmarried.
"The future of marriage may depend," as an analysis of that last figure by the Gallup Organization remarks, "on whether young people simply delay marriage or sidestep it altogether." Society generally and children especially have an interest in encouraging these couples to get and stay married.
One way to do that is to signal, legally and culturally, that marriage is not just one of many interchangeable "lifestyles," but the Gold Standard for committed relationships. For generations, both law and culture signaled that marriage is the ultimate commitment, uniquely binding and uniquely honored; that everyone could and should aspire to marry; and that marriage is especially important for couples with children.
Same-sex marriage may be the first opportunity the country has had in decades to climb back up the slippery slope and say, quite dramatically, that marriage - not co-habitation, not partnership, not civil union, but marriage - is society's first choice. An American gay couple in their eighties got married in Canada in 2003 after 58 years together. Asked why they bothered, one of them replied, "The maximum is getting married." That is a good pro-marriage signal to send.
If you take this view of the cultural message of same-sex marriage, then there may be significant benefits for children, gay and straight alike. Gay children, of course, benefit directly from knowing that their future holds the prospect of marriage, with all the blessings that go with it.
Straight children benefit when they look all around and see marriage as the norm. If a child sees that Mr. and Mrs. Smith, the neighbors to the left, are married, and that Mrs. and Mrs. Jones, the neighbors to the right, are married - that sends a positive and reassuring message to children about both the importance of marriage and the stability of their community. Every marriage signals the cultural primacy of marriage and adds to the social capital available to adults and children.
The converse is also true: the fewer the marriages, the weaker the institution. If marriage is not universally available, it cannot be universally expected. Which brings us to the potential negative externalities of not having same-sex marriage. If, say, the Constitution were amended to forbid same-sex marriage, three things would happen - none of them good for marriage.
First: Both law and custom would busy themselves setting up new nonmarital structures to accommodate same-sex couples. The innovations would range from full-blown Vermont-style civil unions (marriage in all but name) to halfway-house programs like California's domestic partner program to patchwork corporate "partner benefits." Many existing domestic partner programs, corporate and governmental, are already open to heterosexual couples. Insofar as that pattern continues, we will have set up a whole new structure of non-marriage for heterosexuals.
Even if partner programs could be restricted to gay couples, they would still signal culturally that marriage is just one of many choices on a menu of lifestyle options. Children would grow up learning that some people have marriages, some civil unions, some partnerships, and so on. It is hard to see how that could do marriage any good.
Blocking both same-sex marriage and alternatives like civil unions - as some states are now doing - is even worse, because it will ensure the legal and cultural recognition of co-habitation as the equivalent of marriage. Courts, and eventually politicians, will look at same-sex couples who have been together for ten or 20 years and say, "This couple looks and acts married. They talk the talk and walk the walk. We don't let them marry, but we also surely can't pretend they're just unrelated individuals in the eyes of the law."
On the cultural side, every happily unmarried gay couple will be a walking billboard for the joys of co-habitation. And, even in principle, there is no way to exclude heterosexual couples from co-habitation. Over time, the lines between co-habitation and partnership and marriage will become impossible to defend - or even to discern.
Second: By definition, banning same-sex marriage would ensure that all same-sex couples with children raise their kids out of wedlock. Obviously, that is no way to reconnect marriage with child-rearing. Just the opposite: Every parenting gay couple will be an advertisement for the expendability of marriage. After all, how important can marriage be for children if some children's parents are forbidden to marry?
Third, and not least: To most Americans over age 65 or so, same-sex marriage is a contradiction or an abomination; but among Americans under 30, many or most (depending on which poll you consult) see the ban on same-sex marriage as discrimination. For members of this younger generation, nondiscrimination is the polestar in the firmament of values. They do not want to be associated with what they perceive as anti-gay discrimination any more than their parents do with sexism or racism.
To brand marriage as the discriminatory lifestyle choice risks condemning it to cultural obsolescence. That may seem far-fetched now, but, only a few decades ago, it seemed far-fetched to say that men would shun clubs that exclude women. Indeed, San Francisco's decision last year to grant same-sex marriage licenses was an anti-discrimination protest. Ditto for the granting of licenses in New Paltz, New York. Benton County, Oregon, stopped issuing marriage licenses altogether in March 2004, saying it did not want to be associated with a discriminatory institution.
Here, then, is the problem with the Gold Seal for Heterosexuals argument: not that it is discriminatory, but that it rests on the wrong kind of discrimination. Marriage's health depends far less on society's preference for heterosexuality over homosexuality than on society's preference for marriage over non-marriage, and we must now choose between those two preferences. Because marriage is a unique commitment, society has a powerful stake in preferring it to alternative family arrangements; but discriminating in favor of marriage will not continue to seem fair if millions of American couples are forbidden to marry.
And so marital discrimination in favor of heterosexual couples will erode or even end society's ability to discriminate in favor of marriage itself. Textbooks will talk about "unions," and anniversaries will become celebrations of "partnerships." Same-sex marriage opponents who worry about losing our unique word for "male-female union" ought to worry at least as much about losing our unique word for "family."