Same-sex marriage and the "reconceiving" of children.

• Author: Alvare, Helen M.

ABSTRACT

Historically, the U.S. Supreme Court has consistently highlighted the importance of procreation in its consideration of marriage in constitutional cases. Recently, however, litigants seeking same-sex marriage and judicial decisions sympathetic to their arguments have ignored the language and holdings of this long-standing body of law. Instead, they have focused nearly entirely upon adults' interests in state marriage recognition. To the extent children are mentioned, it is for the purpose of speculating that children living within same-sex marriage households might indirectly benefit from recognition of adults' rights to same-sex marriage.

This Article discusses the importance of states' interests in procreation and child rearing and the Supreme Court's constant recognition of those interests. Ultimately, this Article argues that judicial decisions recognizing same-sex marriage have marginalized, or "reconceived," the role of children in marriage, in several important ways, all to the marked disadvantage of children.

CONTENTS INTRODUCTION I. THE DISAPPEARANCE OF CHILDREN AND KINSHIP FROM THE GOODS OF MARRIAGE A. Procreation 1. Supreme Court Decisions Linking Marriage with Procreation 2. Same-Sex Marriage Proponents Divorce Marriage and Procreation 3. Judicial Decisions Minimizing the States' Interest in Procreation a. Pre-Windsor State Court Opinions b. Windsor B. Kinship and Biological Child Rearing II. RIGHTS BEFORE DUTIES? STATE BEFORE PARENTS? A. Parents' Duties to Children B. Same-Sex Marriage as an Indirect Benefit to Children? III. ENDING THE INQUIRY ABOUT CHILDREN'S WELFARE AND SAME- SEX MARRIAGE JUST AS IT IS BEGINNING IN EARNEST A. Examples of the Incomplete Inquiry B. Altering Children's Existential Situation and Sense of Self CONCLUSION INTRODUCTION

This Article argues that judicial opinions creating same-sex marriage rights "reconceive" constitutional family law's longstanding and basic grasp of the relationships between marriage and children and between parents and children. Any observer might perceive the most obvious elements of this shift: the birth of children is no longer an important part of states' interests in recognizing marriage. Moreover, states do not express a preference for facilitating or preserving children's embeddedness within a family composed of their kin--biological mother or father or siblings or extended family. These positions represent dramatic reversals of 120 years of constitutional family law decisions issuing from the United States Supreme Court.

Read carefully, however, both state and federal same-sex marriage opinions also communicate a great deal more concerning the situation and future of children within both society and family law. They perceptibly tilt the balance of responsibility for children away from the adults who are rearing them, in favor of the state and society. Further, by blessing and paving the way for more child rearing in homes led by same-sex couples, they shift the meaning of children to themselves and to others, away from notions like "gift" and "kin," and toward notions such as "choice" or "object of desire." They also shift the environment for children away from relationship and toward separation. This Article addresses each of these shifts as follows.

Part I presents representative same-sex marriage cases' reversal of the U.S. Supreme Court's longstanding position that state marriage recognition is importantly associated with procreation. It also considers such cases' ignoring or disclaiming states' interests in the goods that married, biological parents bring to their children.

Part II discusses the shift in the paradigm heretofore governing adults' legal rights respecting children. In prior constitutional family law, when adults sought rights in conflict with customs or laws designed to protect children's best interests, the Supreme Court asked first if the adults' duties to children would be fulfilled by the adults' exercise of their claimed rights. Opinions approving same-sex marriage, on the other hand, devote either no attention, or shallow or uninformed attention, to the matter of adults' duties to children, despite the fact that same-sex marriage recognition will facilitate a host of rights for adults respecting children.

Part II also highlights a second change that same-sex marriage recognition brings about respecting adults' rights over children. While prior Supreme Court decisions presumed that children's welfare was a direct product of adults' satisfaction of their duties toward children, cases approving same-sex marriage speculate that children will benefit only indirectly from the state's granting of rights (marriage recognition) to adults. This conclusion flows from a presumption often appearing in same-sex marriage opinions: if there is suffering experienced by children living in same-sex partner households, it is due to governmental and social mistreatment of the partners or household, not the family structure; therefore, granting rights to the adult partners will cause outsiders to treat the family better and create trickle-down economic and social benefits for the children in the household. In short, outsiders are assigned more of the responsibility for children's welfare, while the adults rearing them are assigned less responsibility, as compared with prior relevant law.

Part III critiques same-sex marriage opinions' short-circuiting of the inquiry into the welfare of children in same-sex households just as it is commencing in earnest. It also explores some potential effects of casting children into existential environments that portend difficulties for children and for the larger society.

1. THE DISAPPEARANCE OF CHILDREN AND KINSHIP FROM THE GOODS OF MARRIAGE

   United States Supreme Court decisions from the early nineteenth to the late twentieth century repeatedly recognized with approval states' interests in the procreative features of marriage: child birth and child rearing by the adults who conceived them. This Part considers those decisions and, thereafter, representative same-sex marriage cases' reversal of the Court's position.

   1. Procreation

      1. Historical Marriage Rights and a Reliance on Procreation

         As detailed in this Part, the Court has written a great deal on the nature of the states' interests in marriage in the context of evaluating state laws affecting entry into or exit from marriage or concerning parental rights and obligations. Typically, the Court has recognized that states are vitally interested in marriage, not only because it benefits adults but also because it offers distinct advantages to children and to the larger society. Regarding society's interests, the Court has noted bluntly that children create society. It has not placed special weight on adults' interests in marriage, nor has it vaulted the interests of limited categories of children over the interests of all children generally. This is not to deny that states value adults' interests in marriage nor that prior constitutional family law has acknowledged these interests--including adult happiness, mutual commitment, increased stability, and social esteem. It is only to say that pre- Windsor constitutional law concerning marriage is not at all adult-centric, as distinguished from Windsor itself and state law cases recognizing same-sex marriage.

         While it is difficult to disentangle completely the Court's language affirming states' interests in the birth of children from their interests in the healthy formation of children within marriage, it is possible to discern the former from a close analysis of the relevant cases. For example, in Reynolds v. United States, (1) rejecting a Free Exercise claim on behalf of polygamy, (2) the Supreme Court explained states' interests in regulating marriage with this simple declaration: "Upon [marriage] society may be said to be built...." (3) This statement necessarily implies that marriage is inextricably linked to procreation, the means by which society is generated. Nearly 100 years later, in Loving v. Virginia, (4) in an opinion striking down Virginia's antimiscegenation law, (5) the Court referred to marriage as "fundamental to our very existence and survival" (6)--again clearly recognizing the role of marriage in propagating society through childbearing.

         Even in cases where only marriage or only childbearing was at issue, the Court consistently referred to the concepts of marriage and childbirth together in the same phrase, nearly axiomatically. The following cases illustrate: In Meyer v. Nebraska, (7) which vindicated parents' constitutional rights to have their children instructed in a foreign language, (8) the Court referred not merely to parents' rights to care for children but to citizens' rights "to marry, establish a home and bring up children." (9) In Skinner v. Oklahoma ex rel. Williamson, (10) concerning a law that imposed forced sterilization on certain felons, (11) the Court opined that "[m]arriage and procreation are fundamental to the very existence and survival of the race." (12)

         In Zablocki v. Redhail, (13) which struck down a Wisconsin law restricting marriage for certain child support debtors, (14) the Court wrote that "it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society." (15) As in Loving, the Zablocki Court reiterated that marriage is "fundamental to our very existence and survival" (16) and recognized additionally the right to "deci[de] to marry and raise the child in a traditional family setting." (17)

         The 1977 opinion in Moore v. City of East Cleveland, (18) announcing a blood-and-marriage-related family's constitutional right to co-reside, (19) referenced the procreative aspect of family life, stating that "the institution of the family is deeply rooted in this Nation's history and tradition. It...