Feb. 1, 2012
Legislation to change the definition of marriage abolishing the one man, one woman definition codified only 14 years ago is now working its way through the Washington State Legislature.
There is little doubt that the legislature has the power to engage in such social engineering if it chooses to do so. Such official affirmation of homosexual conduct would be a way for politicians to appease the two to three percent of the population who self-identify as gay or lesbian and placate others who do not grasp the implications of this massive social change.
But same-sex marriage is not being sold as a political payoff, or even (primarily) as a social service providing a package of legal and financial benefits to this population. Instead, advocates of redefining marriage argue that a belief in civil rights and equality actually compel such a radical redefinition of our most fundamental social institution.
Yet it was only six years ago that the states Supreme Court, in the case of Andersen v. King County, rejected such arguments in upholding the 1998 Defense of Marriage Act.
Justice (now Chief Justice) Barbara Madsen pointed out in her majority opinion that while the U. S. Supreme Court has declared marriage to be a fundamental right, it has done so only in the context of marriages between a man and a woman, since they relate to procreation and the survival of the human race.
In his concurrence, Justice James M. Johnson noted that the only inequality in the current law is between different types of couples, not individuals. Professed homosexuals, like all Washingtonians, are clearly allowed to marry in Washington. Yet all individuals also face limits on their choice of marriage partner: A person may not marry someone under age 17, may not marry if already married, may not marry a close relative, and may not marry if the parties are persons other than a male and a female. The last prohibition, like the bigamy/polygamy prohibition, is definitional.
There is no question that opposite-sex couples are unique; as Justice Madsen noted, [N]o other relationship has the potential to create, without third party involvement, a child biologically related to both parents. The link between marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couples willingness or ability to procreate, nor by the fact that some same-sex couples raise children; Such over- or under-inclusiveness does not defeat finding a rational basis for treating opposite-sex couples uniquely.
Marriage serves not only to encourage the potentially procreative relationships of opposite-sex couples, but also to regulate them. Justice Madsen quoted a 2005 Indiana court decision which noted that procreation is sometimes accidental: [The] institution of opposite-sex marriage both encourages such couples to enter into a stable relationship before having children and to remain in such a relationship if children arrive during the marriage unexpectedly.
Not only are opposite-sex couples the only ones capable of natural procreation, but they also provide the best environment for child-rearing. As Justice Johnson wrote: The legislature was offered evidence that children tend to thrive best in families consisting of mothers, fathers, and their biological children. ... Direct comparisons between opposite-sex homes and same-sex homes further support the former as a better environment for children. For example, studies show an average shorter term commitment and more sexual partners for same-sex couples.
Advocates of same-sex marriage regularly confuse one of the personal reasons why individual couples choose to marry to express love and commitment with the public purposes of marriage as a social institution. Justice Madsen was blunt in noting that the right to marry is not grounded in the States interest in promoting loving, committed relationships. While desirable, nowhere in any marriage statute of this state has the legislature expressed this goal.
Some people argue that other changes in the institution of marriage, as well as technologies which have separated sexual relations from procreation, mean that the historic definition of marriage can be abandoned. But as Justice Johnson noted, quoting a brief submitted by Families Northwest, [W]idespread contraceptive and abortion rights may actually make more salient, not less, the traditional role of marriage in encouraging men and women to make the next generation that society needs. The more ... choice individuals have about whether or not to have children, the more need there is for a social institution that encourages men and women to have babies together, and creates the conditions under which those children are likely to get the best care.
In 2006, Justice Madsen said for the court, We conclude that limiting marriage to opposite sex-couples furthers the States interests in procreation and encouraging families with a mother and father and children biologically related to both.
The legislature would be wise to conclude the same today.