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Conservatives probably will respond to the previous point by contending that while letting single-gender couples raise children might not be profoundly harmful, it certainly is not optimal. The optimal family, they will say, consists of children raised by two parents of the opposite sex.
Let’s accept this as true for argument’s sake. But while it is one thing to stipulate what might be optimal, it is something else – something far more dangerous – to suggest the state should impose its view of what is optimal on the nation’s families.
After all, the optimal conditions for child-rearing extend far beyond parental gender. We can easily imagine what a government in the hands of left-wing activists might consider optimal: No guns in the home. No smoking, either. Certainly no spanking. And absolutely, positively no trying to cure a sick child with prayer.
In fact, a government that was to impose its view of optimal child-rearing conditions would not start by forbidding gay couples to marry, since their marital status has nothing to do with their child-rearing skills. Rather, a government bent on optimal parenting, as conservatives define it, would start by banning divorce. (And to be fair, some conservatives – such as Virginia gubernatorial candidate Ken Cuccinelli – do want to make divorcing more difficult.) Having banned divorce, social conservatives trying to optimize parenting would then take children from single-parent homes, where they face much longer odds of life success, and require two-parent families to adopt them.
(5) Banning gay marriage encourages big-government thinking.
Conservatives content they want to protect the institution of marriage and foster procreation by straight couples. First question: Show me where the Constitution says that is any part of government’s job. Go ahead, I’ll wait.
Can’t find it, can you? Even if someone could, the means chosen – banning gay marriage – is connected to those goals only by logic so thin and weak it cannot stand up. Letting gay people marry does not discourage straight people from getting married, and it certainly does not discourage them from procreating. (What spouse has ever said, “Gee, honey, I’d love too, but not tonight – seeing Kevin and Don’s engagement announcement kind of spoiled the mood”?) Gay marriage simply has nothing to do with either of those issues.
By pretending it does, conservatives adopt precisely the sort of big-government thinking they otherwise abhor. If government is supposed to encourage procreation, then the law should be narrowly tailored to achieve that goal. (For instance, straight couples seeking to marry should have to take fertility tests.) By suggesting government can exclude gays from marriage in order to encourage procreation, even though the two issues have no relation to each other, conservatives encourage government to claim it can do anything at all so long as it has what James Madison called a “colorable pretext” for its actions. That’s exactly the kind of thinking that led to Kelo, the Supreme Court decision allowing local governments to confiscate private property if they think they might one day find a better use for it.
Finally, conservative say the traditional straight family is – well, traditional. But as another court has noted, this does not explain the reason for discriminating against gays, it merely repeats it.
Repeating a conclusion doesn’t prove it. And besides: “Upholding tradition” doesn’t appear anywhere in the Constitution, either.