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February 2008Why Voters, State Governments, and the Courts Support the One Man/One Woman Marriage Limitationby Steven T. O’Ban In September 2007, Bar News was dedicated to a single subject: marriage and the law. Our intent through the articles in that issue was to educate, debate, inform, advise, and stimulate our members’ thoughts on this important issue. We heard from several folks in the ensuing months, including Mr. O’Ban, who expressed concern that the articles included did not adequately represent all sides of the issue. In response, I asked him whether he would be willing to submit an article articulating his views on the subject in order to further the discussion and he readily agreed. In March and April, the Board of Governors plan to hold discussions in conjunction with the Board meetings in Tacoma and Spokane, respectively, about legal issues surrounding marriage and the law in Washington state. In particular, how this issue affects the legal profession and the services we provide to our clients will be discussed — areas such as property transfers, tort proceedings, evidentiary privilege, and employment and pension benefits. All interested WSBA members are encouraged to attend. For more information about these forums, please visit the WSBA website at www.wsba.org. Thanks to all of you for your continued engagement in this important issue of the day. Paula Littlewood, WSBA executive director In February 2004, our state was caught up in the wave of lawsuits breaking across the country following the Goodridge v. Dept. of Public Health1 decision. In Goodridge, a divided Massachusetts Supreme Court mandated for the first time that same-sex marriage was required by that state’s constitution. Same-sex marriage advocates in Washington filed similar state constitutional challenges later consolidated as Anderson v. King County.2 I represented lawmakers and urban and religious leaders who intervened and successfully defended the one man/one woman limitation (or, “marriage limitation”). At the time, Mr. Doug Wheeler, one of my clients, was the director of an urban private school that serves children in Seattle’s Central Area. Mr. Wheeler told the Court why he felt compelled to intervene and defend the marriage limitation: Although so many of our kids lack a father or mother, they need to have kept before them the goal of marriage between a husband and wife. We are trying to put children and homes back together and critical to achieving that goal is being able to hold up before their eyes the standard of marriage and that its main purpose is to nurture and love children. Mr. Wheeler’s statement to the Court evokes the central question of the marriage debate: What is the purpose of civil marriage? Examining the two different views of the purpose of civil marriage is predictive of whether or not one believes a legitimate public-policy reason exists for supporting the marriage limitation. The Purpose for Civil Marriage Advanced by Proponents of Same-Sex Marriage Undeniably, married couples on the whole take better care of one another than if they were not married. But Ms. Novotny doesn’t explain why we should accept her formulation as the primary purpose of marriage, other than to claim, without authority, that it is the one “[v]iewed historically and presently.” But as we shall see, effective private-caretaking is not the primary purpose of marriage to the vast majority of Americans, or viewed historically, or as recognized by the courts. Not a Single State Has Enacted Same-Sex Marriage Through the Legislative Process or by Ballot Measure The view that society sanctions civil marriage to reduce state dependency does not square with history. Marriage preceded the emergence of the welfare state by centuries; indeed it has been with us as long as recorded history. Government as provider of basic social services on a broad scale is a late 19th-century phenomenon, first carried out in Germany under Bismarck. For that matter, marriage predated the emergence of the nation-state and, before that, feudalism. There is simply no historical support for the notion that civil marriage was intended as society’s complement to state welfare services and benefits. The courts confirm both the historical and conventional view of the purpose of marriage. Since the 1800s, when polygamy advocates last challenged the marriage limitation, courts discussing marriage consistently linked their decisions to the family structure of one man, one woman, and their children.3 The United States Supreme Court characterized the right to marry as fundamental: “Marriage and procreation are fundamental to the very existence and survival of the race.”4 The Court reaffirmed the connection between marriage and procreation and child-rearing when it placed the “decision to marry” on “the same level of importance as decisions relating to procreation, childbirth, child-rearing and family relationships.” 5 Courts have continued to rely on the link between marriage and procreation in recent decisions.6 Even a decision heavily relied upon by same-sex marriage proponents supports the link between marriage, procreation, and children. In Loving v. Virginia,7 anti-miscegenation laws interfered with marriage between a man and a woman in pursuit of invidious racial segregation policies. Unlike anti-miscegenation laws, the marriage limitation reinforces, rather than disrupts, the historical understanding of marriage as a unique male-female relationship.8 While marriage has always been defined as a male-female relationship, it was defined by race only when racial marriage restrictions were imposed as badges and incidents of slavery. “In this respect, Southern anti-miscegenation laws ran counter to the Western tradition of marriage law.”9 A string of recent court decisions have recognized that channeling procreation into marriage is the principal purpose of marriage.10 Thus, the popular view of marriage, history, and nearly every appellate court decision since the 1800s point to the purpose for civil marriage — encouraging child-bearing and child-rearing in the optimal environment headed by the two people most responsible for that child’s very existence. This is the rational basis relied on by all the courts for the marriage limitation.11 Marriage Channels Heterosexual Sex into a Stable Environment for Children By legally sanctioning heterosexual relationships through marriage, the state imposes both obligations and benefits on the couple. All too often, heterosexual relationships are casual or temporary. The state communicates to parents that long-term, committed relationships are uniquely important as a public concern. Civil marriage is based on inexorable biological and relational facts. The state recognizes marriage to direct the procreation that is sure to take place into marriage. An important function of marriage is to create more stability and permanence in the relationships that cause children to be born. The obligations and benefits of marriage offer an inducement to opposite-sex couples who make a solemn, long-term commitment to each other. And in so doing, the two persons most responsible for creating the child are encouraged to raise the child. Public-policy makers could conclude that the rationale for marriage does not apply with comparable force to same-sex relationships. Homosexual couples cannot, as a matter of biology, produce their own offspring and so children of homosexual parents will in 100 percent of all cases be raised by at least one non-biological parent. It follows that government may confer recognition on opposite-sex marriages, which may produce children, but not confer recognition on same-sex “marriages.” There is simply no equivalent to marriage of a man and a woman. The Purpose for the Marriage Limitation is Not Weakened by Including Infertile Opposite-Sex Couples and Excluding Same-Sex Couples with Children In certain cases, the best interests of children may necessitate placing a child in a non-traditional home. But the state’s focus is just that, on the best interests of children in less than ideal circumstances. “Alternative arrangements, such as adoption, arise not primarily in deference to the emotional needs or sexual choices of adults, but to meet the needs of children whose biological parents fail in their parenting role.”15 The state may reasonably conclude that the optimal family form does not always work for some children, while still preferring the family headed by a mother and father as the preferred environment for procreating and raising children. Nothing about adoption or placing children in a single-parent home undermines the state’s preference for rearing children by their natural parents. And leaving the area of reproductive technology unregulated is not the same as elevating that technology to a status equal with procreation by the biological parents of the offspring. Opposite-Sex Couples Model Both Halves (Genders) of Humanity to Children It is reasonable for policy makers to assume that children with both a father and a mother benefit from the balance of a two-gender household. Marriage Should Reinforce the Importance of the Role of Fathers (and Mothers) Princeton University lecturer and psychiatrist Dr. Jeffrey Satinover stated in his declaration filed in the Anderson litigation that numerous peer-reviewed studies confirm that from fatherless homes come 63 percent of all youth suicides, 90 percent of all homeless and runaway children, 85 percent of all children with behavioral problems, 71 percent of all high school dropouts, 85 percent of all youths in prison, and well over 50 percent of all teen mothers. Quantifiable deficits occur in literally every area of development due in part to the absence of a father — social, psychological, intellectual, educational, emotional, relational, and medical and other health risks. Same-sex marriage would result in the incongruity of conferring state approval on unions that would ensure children were raised in fatherless (or motherless) homes. The state has a vital interest in maintaining the simple and internally consistent definition of marriage. To the extent procreation in the optimal context of heterosexual marriage is a state interest, the state has a corresponding interest in refraining from deliberately redefining marriage to include unions which cannot, as an entire category, satisfy this interest. Laws not only regulate behavior through coercive powers, but also in “expressing social values and in encouraging social norms to move in particular directions.”17 “The expressive function of law is important because the social norms it fosters encourages good behavior; without this effect, coercion or economic pressure might be needed to induce desirable behavior.”18 Law must not only be logical and coherent, it must be clear so that its expressive function is not muted. Thus, choosing to permit or restrict marriage is a choice of what political and social organizing principle society will follow. If and when the Legislature takes up the issue of whether to redefine marriage, it will be considering whether to reorder society. This is not the function of judges in our system of democratic government. If Marriage Is About Recognizing the Personal Choices of Individuals Who Wish to Care for Each Other, Then There Is No State Interest in Recognizing Some But Not All Such Private Arrangements What proponents seem to ignore is that adopting their formulation for marriage recognition would create a presumption against any state regulation of marriage that interfered with the personal preferences of adults. The burden would shift to the state to justify each regulation that excluded some group of adults. The power to choose the basic organizing unit of society would be stripped from the state and placed in the hands of any two or more individuals who express mutual commitment or love. The prohibitions against polygamy, for example, would fall next if the prohibition against same-sex marriage is declared invalid.19 In other words, the theory of same-sex marriage contains no principle that would include members of the same sex, but still limit marriage to couples. By contrast, the theories underlying the marriage limitation for recognizing marriage and conferring benefits focus on the uniqueness of the male-female couple as the only union of two persons that can produce children, raise their own offspring, and provide intimate contact with both halves of humanity. This theory of marriage is coherent both in the union it recognizes (and those it does not) and the public-policy reasons for creating the obligations and benefits associated with marriage. It is important to note that the marriage limitation does not single out same-sex marriage for exclusion. Other forms of marriage are invalid because they do not further the state’s interest in procreation within the optimal environment for children.20 Hence, if the justifications for the marriage limitation are illegitimate, then there is nothing left to support the state’s interest in sanctioning marriage as a special relationship. All relationships would be on an equal footing. Advocates of same-sex marriage commonly respond by reframing the question: “How would same-sex marriage discourage opposite-sex couples from procreating within marriage?” It may or may not, but it would certainly change the purpose and definition of marriage. But perhaps more to the point, this is not the question that courts answer in the face of the public’s clear public-policy preference for marriage defined as one man and one woman. As discussed above, nearly all laws are underinclusive. The question for courts reviewing statutory classifications is whether there is a rational basis for the Legislature drawing the classification as it has. The Washington State Supreme Court and nearly every other appellate court to consider the question have concluded that a rational basis unquestionably exists. The Washington State Supreme Court rejected various arguments that the denial of marriage to same-sex couples implicated fundamental rights requiring strict scrutiny analysis. Under federal constitutional analysis, for a fundamental right to exist it must be “objectively” and “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” so that “neither liberty nor justice would exist if they were sacrificed.”21 To date, no appellate court has held that a fundamental right to same-sex marriage is deeply rooted in this nation’s history and tradition; even the Goodridge court conceded this. Similarly, the Court rejected the argument that the limitation targets a suspect class, homosexuality. Every court asked to do so, including the Ninth Circuit, has declined to hold that homosexuality is a suspect class requiring heightened scrutiny.22 Conclusion Marriage law is not about discriminating against homosexuals. Marriage predated the emergence of homosexuals as an identifiable group by millennia.23 Marriage is about forging a vital social connection between heterosexual sex, the children who are the consequence of that union, and the optimal environment in which to raise those children. Steven T. O’Ban is a trial lawyer and a member of Ellis, Li & McKinstry PLLC. He can be reached at soban@elmlaw.com. Notes
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