What do you think?

What Do You Think?

The two arguments below are popular positions taken in order to justify denying same-sex couples the right to marry. Are these compelling state interests? Does banning same-sex marriage (SSM) advance these state interests or achieve the state’s goal? Let’s find out.

“We must preserve the definition of marriage.” Obviously, same-sex marriage must be banned in order for the definition of marriage to remain a union between a man and a woman. But, is preserving the definition of marriage a compelling state interest? Does “tradition” justify a same-sex marriage ban? To both questions the answer is no. The Supreme Court of Connecticut had something to say about “tradition.” The Court said that it is improper “to define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible.” Traditionally, same-sex couples have been prohibited from marrying. One cannot then argue that tradition is the reason same-sex couples should be prohibited from marrying. The traditional denial of the right to marry is what has same-sex couples fighting for the right now. The “tradition” argument is circular. So if maintaining the traditional definition of marriage is not a compelling interest, what is it? In his dissenting opinion in Lawrence v. Texas, Justice Scalia wrote that “preserving the traditional institution of marriage is just a kinder way of describing the state’s moral disapproval of same-sex couples.” A bellow for tradition is merely disguised abhorrence. It certainly is not a state interest sufficient to justify denying same-sex couples the right to marry. And that’s not just me talking, The Supreme Court of the United States says animus, or strong dislike, is not a good enough reason to deny any group the equal protection of the law.

“Same-sex marriages do not create an optimal living environment for children.” This “protect the children” argument is founded on the idea children raised by same-sex parents are somehow disadvantaged and that same-sex couples make a deficient parental unit. The welfare of children is certainly a compelling concern of the state, but is it necessary to deny same-sex couples the right to marry in order to protect children? Again, the answer is no. Those who raise this argument often point to studies that show children raised in families with a mother and father, fare better in childhood and as adults than do children raised in families of a single sex. These studies, however, compare children raised by two-opposite sex-parents to those raised by a single parent (therefore single sex). These studies are therefore in applicable in this analysis and their use is misleading. The truth is many agree that the studies that do analyze the lives of children raised by same-sex couples are biased (on both sides) or inconclusive. Still, several organizations such as the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers, and the American Academy of Pediatrics support same-sex partners as parents. And ask yourself this: If same-sex couples are such inadequate parents and the children they raise are so disadvantaged, why are same-sex couples permitted to adopt children in every state but Florida? In reality, children ideally need a loving, stable, and supportive environment to grow up in which can be provided by same-sex and opposite-sex parents.

On the flip side, some courts have found that it is actually harmful to the children of gay couples to deny their same-sex parents the rights, benefits, and protections of marriage provided by state law. So I guess the opponents to SSM are right. Children of same-sex couples are disadvantaged. Only it’s not their parents’ fault. Massachusetts Supreme Judicial Court Justice Marshall wrote:

Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. . . . In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. 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.

And Justice Albin of the Supreme Court of New Jersey wrote:

Disparate treatment of committed same-sex couples, moreover, directly disadvantages their children. We fail to see any legitimate governmental purpose in disallowing the child of a deceased same-sex parent survivor benefits under the Workers' Compensation Act or Criminal Injuries Compensation Act when children of married parents would be entitled to such benefits. Nor do we see the governmental purpose in not affording the child of a same-sex parent, who is a volunteer firefighter or first-aid responder, tuition assistance when the children of married parents receive such assistance. There is something distinctly unfair about the State recognizing the right of same-sex couples to raise natural and adopted children and placing foster children with those couples, and yet denying those children the financial and social benefits and privileges available to children in heterosexual households.

One could try to argue that I have held the state to too high a burden with the strict scrutiny analysis. Only a Hawaii court has strictly scrutinized the government relating to this issue. Yes, one could make such a frivolous argument. But, neither of the above justifications can even be considered a rational justification (the lowest needed) for interfering with an individual’s rights. In my next post I will discuss some other arguments made in opposition to allowing same-sex marriage.