The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It is generally assumed that the U.S. Supreme Court is but several weeks away from mandating state recognition of same-sex marriage nationwide. The Supreme Court's more liberal justices are expected to vote in favor of same-sex marriage, and the Court's more conservative justices are expected to vote against.
Conservatives may have good reasons to reject the conclusion that the Constitution requires state recognition of same-sex marriage (and I share some of them), but should conservatives oppose state recognition of same-sex marriage as a policy matter? I think not.
National Review managing editor Jason Lee Steorts makes a conservative case for recognizing gay marriage (and against the various natural law arguments popular with many conservatives) on NRO. Steorts rejects the argument that only a bigot could oppose gay marriage, and does not call for the imposition of same-sex marriage through judicial fiat, but argues that conservatives should support the recognition of same-sex marriage as a matter of policy. Here's how his argument begins:
Civil marriage was instituted, let us concede, to safeguard the interests of children by endorsing and protecting the kind of stable, committed relationships that produce them and are suited to their upbringing. But there is no way to know in advance which couples can or will have children; we would hardly want county clerks to administer fertility tests or ask intrusive questions about people's ability or intention to reproduce. So we made civil marriage generally available to sexually complementary couples. We did this without apparently taking notice of same-sex couples, let alone aiming to discriminate against them. Since traditional marriage laws had a legitimate purpose and were tailored to that purpose, there is no obvious reason for courts to invalidate them.
But equal treatment is both a legislative and a judicial concern. We can realize that a law that once seemed well designed could, in fact, be fairer. Reexamining marriage laws with this possibility in mind, we should register the following facts. First, civil marriage already includes a group of people—married, childless men and women—who are irrelevant to its child-centric purpose. Second, there is another group of people—committed same-sex couples who wish to marry—who have just as much reason to want the law's recognition and protection of their relationships as married, childless men and women do. (Some same-sex couples are also raising children, much to traditionalists' horror, but we leave this aside.) Third, couples belonging to either of these two groups have the same reasons and motivations, rooted in their love for each other, to abide by the standards of conduct that we traditionally associate with marriage, namely exclusivity and fidelity subsequent to a vow of permanent commitment. In light of all this, it is a matter of simple fairness to treat the two groups the same way, and legislators and voters should favor doing so.
Steorts's essay should provide conservative opponents of gay marriage with much to chew over, even if it does lean heavily on the sorts of egalitarian "fairness" arguments that often make conservatives squirm. But, if anything, I think he understates the case. While I share many of his premises, and remain unconvinced that state recognition of SSM is constitutionally required (even if it is no business of the federal government)—I believe he ignores additional reasons conservatives should be open to the state's recognition of same-sex marriage.
For libertarians, the policy argument is easy: The state is to serve the people, and gay relationships are a fact of contemporary life. Thus recognizing same-sex marriage is as much a reflection and recognition of what is already occurring in civil society as is the recognition of traditional marriage. In either case, the state is responding to private ordering, rather than dictating the terms or conditions upon which adults may order their own affairs. But not all conservatives are willing to adopt such a limited conception of the state. For those conservatives, I think Steorts is too willing to set aside the interests of children.
As Dale Carpenter explained on the VC 10 years ago, when one considers the facts on the ground—and, in particular, the millions of children who will be raised in households headed by a gay person throughout the nation whether or not gay marriage is recognized—the prudential case for gay marriage is strengthened remarkably.
Children raised by married couples do better in school, are less apt to commit crime, less likely to use and abuse drugs, and so on, than children raised by single people or by unmarried couples. Right now children being raised by gay parents have no access to these advantages. Part of the case for gay marriage rests on protecting these children's families in marriage, thereby benefitting the children themselves. . . .
Even if we conceded what most people assume—that opposite-sex married households are the best environment for raising children, and in particular would be better than married same-sex households—that's no argument against gay marriage. Gay marriage won't take children away from mothers and fathers who want to raise their children together.
No responsible opponent of gay marriage advocates removing all children from the care of gay parents. I suppose that could be proposed and we could debate it, but such an unimaginably cruel and destabilizing policy is not even on the table. So whether or not gay marriage is allowed, children will continue to be raised by gay parents in very large absolute numbers.
The only real question is, will these 1-2 million children be raised in homes that are eligible for the protections and benefits of marriage or will they not be? If it's better for children to be raised by married opposite-sex couples than by unmarried opposite-sex couples (as the evidence shows it is), it would surely be better for children to be raised by married same-sex couples than by unmarried same-sex couples. The marriage of their parents will have some effect and it won't be to make them worse off. For purposes of the gay-marriage debate, that's the relevant comparison, not the comparison between existing married opposite-sex couples and hypothetical married same-sex couples. . . .
Traditionalists are rightly concerned about the stability of home life for children. Gay marriage, in many conceivable ways, should lead to greater stability in hundreds of thousands of homes raising children in this country. The result should be that, to some extent, these children will do better in school, be less likely to commit crime, be less likely to use and abuse drugs, and so on, than they would be if we continue to keep their parents from marrying. If it's really a concern for children that's motivating opponents of gay marriage, they should be pounding the table for gay marriage as a way to protect millions of children.
A focus on the interests of children—the actual children who are alive today and who will be born in the years to come—supports a profoundly conservative, and quite Burkean, argument for gay marriage.
Set aside some utopian conception of what marriage is or should be about in the ideal, and instead recognize the way we live now—how and why we marry and how children are brought into this world and the homes in which they are raised. There are hundreds of thousands of children alive today who stand to benefit from being raised in more-stable, two-parent households. Every state allows gay people to raise children—and nearly all allow homosexuals to adopt or serve as foster parents. If this is acceptable (and few would argue that it's worse for a child to be raised by gay parents than no parents at all) how can it be in the interests of these same children to ensure that they are raised in less optimal conditions? So even if one accepts the premise that protecting children could be a legitimate basis for refusing to recognize same-sex marriage, it is hard to make the practical case—at least if one is genuinely motivated by the interests of children.
Does any of this matter? As a legal matter, perhaps not. If the Supreme Court acts as expected, these issues will be moot. But perhaps if conservatives think more about the children, they will feel a little better about the practical implications of such a result.