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This blog is maintained by the Ruth Institute. It provides a place for our Circle of Experts to express themselves. This is where the scholars, experts, students and followers of the Ruth Institute engage in constructive dialogue about the issues surrounding the Sexual Revolution. We discuss public policy, social practices, legal doctrines and much more.
Posted on: Friday, April 24, 2009
(This editorial first appeared on the website of the Witherspoon Institute, Public Discourse, Ethics, Law and the Common Good)
The Iowa court’s recent decision does not simply broaden marriage, it radically changes its nature. While marriage previously served public purposes of attaching mothers and fathers to their children and one another, now marriage merely serves as affirmation of adult feelings.
The Iowa Supreme Court recently proved that the critics of same-sex “marriage” are correct: we are not being urged to make marriage more inclusive, but to radically redefine the nature of marriage itself. With its decision, the Iowa Supreme Court covertly but profoundly changed the meaning of marriage. The Court abolished the essential public purpose of marriage, and replaced it with a new understanding of marriage that is neither essential nor public. The Institution Formerly Known as Marriage will be an empty shell in Iowa. As the movement to redefine marriage spreads across the country, citizens should look to Iowa to see what this actually entails.
The essential purpose of marriage is to attach mothers and fathers to their children and to one another. Absent this purpose, we would not need marriage as a distinct social institution. Human beings are not born as rational autonomous actors, they are the immature products of sexual relations between a man and a woman, and they need the assistance of adults to survive. Marriage exists, in all times and places, to solve this social problem. If our offspring were born as adults, ready to live independently, or if we reproduced through some form of asexual process, we would not need anything like marriage.
Marriage also has a profoundly social purpose. Marriage creates its own small society consisting of mother, father, and children. That small social unit contributes to the larger society by creating a functioning future—the next generation. Everyone benefits from having a next generation that can sustain the society and keep its institutions going. Even when I personally am old, and even if I have not had any children myself, I benefit from the fact that younger people are building cars and houses, providing medical and legal care, starting new businesses, and running old ones. In modern developed countries, the family also saves the state a lot of money by taking care of its own dependent young, rather than foisting that responsibility onto the taxpayers. Thus, the benefits of marriage go far beyond the benefits to the individual members of the family.
So, what did the Iowa Supreme Court have to say about the purposes of marriage? Did they view the requirement that marriage be between a man and a woman as a violation of the principle of equal protection? Indeed. As the Court argued, “Equal protection demands that laws treat alike all people who are ‘similarly situated with respect to the legitimate purposes of the law.’” If the Court can convince itself that the dual gender requirement bears no relationship to the State’s purpose in having a marriage statute in the first place, then that requirement violates the Equal Protection clause of the Iowa Constitution.
It should be evident that if the purpose of marriage is to attach mothers and fathers to their children and to one another, then the dual gender requirement is perfectly permissible. Same-sex couples and opposite-sex couples are not the same with respect to this purpose. The Court had to come up with a very limited understanding of the purposes of marriage in order to maintain that opposite-sex and same-sex couples are in fact similarly situated.
The Court enumerated several purposes directly. Marriage provides an institutional basis for defining relational rights and responsibilities; marriage allows people to pool their resources; marriage recognizes people’s commitments; marriage provides comfort and happiness; marriage is a status, not a contract.
But these reasons do not explain why we need marriage in particular. I have a relationship with my next-door neighbor. My family pools resources with other members of a boat club. I have commitments to my employees and business associates. A pet brings me comfort and happiness. We do not need the unique relationship called marriage for any of these purposes.
The Court alluded to several other possible purposes, without including them within its list of state purposes. “Therefore, with respect to the subject and the purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples.”
The Court does not seem to realize that if these purposes really exhaust the list of legitimate state purposes of marriage, then there is no reason to have marriage as a distinct legal structure in the first place. Moreover, these are all private purposes, not public purposes, of marriage.
The same-sex couples before the Court claim to be committed and to love each other. Why do we need marriage for that? I’m committed to my sister. I love my best friend. Are we second class citizens because we are not married to each other? There is no state purpose whatsoever to be served by my having some legal statement or affirmation attached to my love for my sister. Besides, who really wants the Court, or the state or anyone else saying that our love is important to the state? People’s feelings are none of the state’s business.
The Court seems to understand this, for it gently and subtly elides the key issue of marriage law when it goes on to say: “Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children . . . just as it does when that framework is provided for opposite-sex couples.” But wait a minute: How in the world does a same-sex couple obtain a child that is “theirs?”
This is precisely the way in which same-sex couples differ from opposite-sex couples. No child is born from a homosexual union. A child born to one of them has another parent who has been quietly escorted into the lab or the backdoor, to make the conception possible. That person is quickly escorted right back out the door, before he can claim any parental rights, or the child can claim any relational rights. Some of us believe that these two people, the child and the opposite-sex parent, require and deserve some protection. But the Court of Iowa does not think them even worth mentioning.
The social purpose of marriage has always been to attach mothers and fathers to their children, and to each other. This universal social purpose does not even make it onto the Iowa Court’s short list. The reason should be obvious: opposite-sex couples and same-sex couples are not similarly situated with respect to that purpose of marriage. If the Court found that attaching children to their parents and parents to one another is a purpose of marriage, they would be unable to sustain their claim that man woman marriage violates the principle of equal protection under the law.
Society needs marriage because children have rights to care from their parents, rights which they can not defend on their own. Societies create marriage to pro-actively protect the legitimate entitlements of children, and to provide for the future of the society. According to the Supreme Court of Iowa, these provisions for children are no longer the purpose of marriage. We are left to guess as to how this truly essential public function will be performed, now that the Court has surreptitiously removed it from the list of marriage’s jobs.
Iowa is a relatively homogeneous and prosperous state. This newly created lacuna in the purposes of the law may not harm Iowa much at first. But other states have more diversity of opinion and practice about socially acceptable behavior, as well as greater economic and social stresses on married life and child rearing. In those states, the cost of redefining marriage is likely to be more pronounced and immediate.
In sum, the Court has elevated the private, inessential purposes of marriage to the highest point in the hierarchy of values of marriage. Given this new understanding, neither the longevity of marriage, nor fidelity within marriage can remain as important values. By the time the opponents of conjugal marriage are finished with their redefinitions, marriage will be little more than a five-year renewable-term contract. The Institution Formerly Known as Marriage will be nothing but a couple of individuals, loosely stapled together by the state.
Advocates of natural marriage, as opposed to genderless marriage, believe that society needs marriage to be a child-centered, gender-based social institution. We have been arguing all along that same-sex “marriage” will be a gender-neutral institution, in which children are only a peripheral concern. When the Supreme Court of Iowa established same-sex “marriage” by judicial decree, they proved our point for us.
Jennifer Roback Morse, Ph.D., is the Founder and President of the Ruth Institute
Posted on: Friday, April 17, 2009
Originally posted at the National Catholic Register April 16, 2009 by Dr. Jennifer Roback Morse
By now, everyone knows that the Supreme Court of Iowa has imposed same-sex “marriage” on the heartland of America, a mere 10 years after the people of that state had expressly voted against it. What very few people know is exactly how unfair this fight really was. Not only was the lineup within the courtroom imbalanced, but the trial court refused to hear relevant evidence. When the case made its way to the Iowa Supreme Court, they didn’t behave much better.
This case, known as Varnum v. Brien, began with a half dozen same-sex couples applying for marriage licenses in Polk County, Iowa. The county clerk, acting in accordance with the law, refused. Mind you, the state of Iowa did not go bothering unassuming people who were minding their own business. This was a staged case. These couples went to the clerk’s office intending to be refused. They sued Timothy Brien, Polk County recorder and registrar, an ordinary county employee.
The plaintiffs, that is, the people who complained, were not exactly average citizens battling the big mean state of Iowa all by themselves. They had the backing of homosexual-rights establishment organizations. The Lambda Legal Defense and Education Fund took in $20 million in 2007. Lambda Legal is a nonprofit devoted solely to bringing legal challenges like these.
By contrast, Polk County, Iowa, has a budget of $15 million for the entire court system.* One of the attorneys of record for Lambda Legal has degrees from Yale and Columbia. Iowa’s law was defended not by the state’s attorney general, nor even by the county attorney, but by two assistant county attorneys.
The case wasn’t a fair fight: It was more like David and Goliath without the benefit of divine intervention.
Most citizens do not realize that this mismatch of legal resources is typical for advocacy cases. So, advocacy organizations on the side of natural, man-woman marriage came into the case as friends of the court, trying to help defend the law of the state of Iowa. Most notably, a group of scholars presented briefs and affidavits on various aspects of the social significance of marriage. But the trial court refused to admit five out of the eight expert witnesses presented to them.
These experts covered a wide range of issues, including the ethics of artificial reproductive technologies, the rights of children to be raised by their parents, the procreative purpose of marriage, the history and meaning of marriage, and the significance of gender differences in parenting. The trial court refused to hear the testimony of Allan Carlson, author of five books on the history of marriage, Margaret Somerville, founding director of the McGill University Centre for Medicine, Ethics and Law, and Stephen Rhodes, political science professor at the University of Virginia. This is the very sort of evidence that courts in other states, such as New York, have found persuasive.
After refusing to hear their testimony, the court had the nerve to declare a whole list of facts were “undisputed.” Instead of listening to both sides and deciding impartially, the court lifted the “facts” directly from the brief of the same-sex “marriage” advocates.
When this case went to the Supreme Court of Iowa, several friends of the court pleaded with them to reopen the admissibility of the evidence, to hear it, and to consider it. The Supreme Court said, “The error committed by the trial court in failing to do so is of no consequence” since they were going to review it themselves.
But their review didn’t amount to much. As for the parenting issue, surely one of the most significant issues under discussion, the court relegated it to a footnote.
“The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else,” says the court, but the court offers no citations to any evidence in support of this remarkable claim. If we took that statement out of the context of the same-sex “marriage” debate and applied it generally throughout society, we would create enormous problems. But put that point to one side for now. Just realize that the Supreme Court of Iowa did not do the public the courtesy of citing a single source in support of this claim.
The debate over marriage hinges in large part on what people think is the subject: Advocates of genderless marriage believe it is about fairness and equality. Advocates of conjugal marriage believe it is about the role of marriage. By dismissing testimony so obviously germane to the functions of marriage in society, the Iowa courts prejudged the case and tacitly declared equality to be the only issue.
The homosexual lobby continually hectors the rest of us about “fairness” and “equality.” But when they get the power, they ignore the most basic rules of fair play. Whether you agree with same-sex “marriage” or not, you can’t possibly support these tactics.
Jennifer Roback Morse is the founder and president of the Ruth Institute, an educational project of the National Organization for Marriage.
Note: * I arrived at this figure by going to “Service Area 1,” detailed expenditures, on page 7 of this document. The total expenditure for public safety and legal services is approximately $58 million. Deduct $1 million for emergency services and another $42 million for law enforcement. The total remaining, for all the other legal functions, including by not limited to the courts, is $15 million.