Prop 8 Trial Exposes Flaws in Marriage Equals Children Argument

In my google search to catch up on the latest news on the Prop 8 case I came across Nan Hunter’s blog titled Hunter of Justice. Nan is a professor at Georgetown Law in DC and has also been following the progress of the Prop 8 same-sex marriage case in California. In her blog post, Hunter points out that the argument that children are integral to a marriage made by David Blankenhorn, founder of the Institute for American Values, at the Prop 8 trial, comes at the same time that U.S. trends show a weakening of the cultural assumption that marriage equals children.

Hunter offers an excerpt of a NY Times commentary written by Tara Parker-Pope who pointed out that while Blankenhorn makes the argument in federal court that: “Extending marital rights to couples who cannot conceive children would change marriage from 'a child-based public institution to an adult-centered private institution' and 'weaken the role of marriage generally in society’” US couples are spending less of their married years, or none at all in our case, raising children, according to a Rutgers’s report called “Life Without Children: The Social Retreat From Children and How It’s Changing America.”

And as revealed in a 2007 Pew Research Center survey, “only 41 percent of respondents said children were important to a happy marriage, down from 65 percent in 1990.”

So what is happening? Increasingly, more people are choosing to remain childless in early adulthood and/or choosing to have less children, resulting in many more years of “childfreedom.” No longer is the bulk of our adult experience consumed with raising children. So for Blankenship to suggest that we will weaken the institution of marriage if we allow same-sex couples who can’t conceive children to marry, he is essentially ignoring the millions of couples, gay and straight, who are proving him wrong and finding strength, stability, and happiness in their childless marriages or are choosing to use surrogates or donor sperm, or be adoptive parents.

In my opinion, Blankenhorn’s argument is a weak one, unsupported by evidence, and I hope and believe that Ted Olson and his team will prevail and prove that a ban on same-sex marriage is unconstitutional.

What do you think?

Flickr photo by Jamison Wieser

Ted Olsen, Conservative Lawyer, Fights to Overturn California’s Gay Marriage Ban

Yes, you read it right. Ted Olsen, the same guy who got George W. Bush into the White House by arguing for Bush in Bush v. Gore in the Supreme Court went to district court last month (Perry v. Schwarzenegger) to argue that California’s ban on gay marriage is unconstitutional.

Why would he do that? One, because he thinks he can win and two, he thinks marriage is a good thing, for individuals and for the community. Gay or straight.

Here’s what he wrote in his article for Newsweek, published prior to the trial, titled The Conservative Case for Gay Marriage:

What, then, are the justifications for California's decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.

The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons.

The second argument I often hear is that traditional marriage furthers the state's interest in procreation—and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?

This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children.

Thank you Mr. Olsen for acknowledging the childfree marriage and our right to be married under the law. I know you are not fighting on behalf of voluntarily childless couples but if you and your very capable co-counsel David Boies succeed in your efforts to overturn Prop 8, you will have gone a long way towards challenging the antiquated idea that couples who are unable or unwilling to procreate should not have the right to legal marriage and to enjoy the benefits of that institution. If intentionally childfree or infertile heterosexual couples can marry, why not gay couples? Children don't make a marriage, committed partners do.

Closing arguments have yet to be presented. However, I will be following up on this trial in this blog. If you would like to read the transcripts from this hearing click here.