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Both the Goodridge and Conaway courts spent a great deal of time on the proposition that, the barring of same-sex marriage hurts the children of same-sex couples, contrary to the argument of those who argue that restricting marriage to one man and one woman furthers the governmental interest in favor of children. In principle, then, this proposition can be used in favor of marriage of any adults who wish to procreate children or care for children. Thus, if two (or more) relatives, such as a woman and her niece are raising the woman’s nephew’s children, the woman and niece should be able to marry. “[M]any people are raising children outside the confines of traditional marriage, and, by definition, those children are being deprived of the various benefits that would flow if they were being raised in a household with married parents.” (Judge Sosman, dissenting in Goodridge). Four per cent of all children live in households with neither parent. (Judge Cordy, dissenting in Goodridge).
First, there are three logical legal regimes dealing with marriage:
(a) no marriage;
(b) marriage open to all adults simultaneously; and
(c) marriage restricted to certain types of adults.
The first two extremes result in chaos. Although there are some who assert that marriage is not a fundamental right but a creature of state law and could be abolished (Goodridge, plurality opinion, n.14), a society without the civil law of marriage and without people entering into such marriages would be chaotic. The second type of legal regime obviously portends chaos for the adults, for their children, and for society.
This leaves the third regime and the issue is the nature of the restrictions. Judge Parrillo’s concurring opinion the 2005 New Jersey appellate case, Lewis v. Harris, stated: “[T]here are reasons for limiting the unfettered access to marriage. Otherwise, by allowing the multiplicity of human choices that bear no resemblance to [monogamous, heterosexual] marriage to qualify, the institution would become non-recognizable and unable to perform its vital function.” “The legal nature of marriage cannot be totally malleable lest the durability and viability of this fundamental social institution be seriously compromised, if not entirely destabilized.” As this article has attempted to demonstrate, allowing same-sex marriages necessarily reverts to a situation in which every adult could be married to every other adult simultaneously.
Second, the law, our government, our society all assume the centrality of procreation to marriage and the use of marriage to control or ameliorate the consequences of procreation. (Judge Parrillo.) “[A]n orderly society requires some mechanism for coping with the fact that [normal] sexual intercourse commonly results in pregnancy and childbirth.” (Judge Cordy.) Judge Battaglia, in dissenting to the September 18 Maryland Conaway decision, would have sent the case back to the trial court so it could receive evidence on how restricting marriage to opposite genders (one man and one woman) serves, or does not serve, the state’s interest in promoting an orderly, stable society, in light of the ability to procreate without normal human coitus.
More and more of our children are not born within marriage. More and more of our children, whether born within or without marriage, are not born through normal human coitus. What laws concerning marriage, divorce, and procreation serve their rights and needs?
Given all of the foregoing, may I suggest the following as this debate continues:
(1) A child has a fundamental right to know the identity of its parents and to obtain their support; this fundamental right is at risk when a child can be born outside marriage and even more so if a child can be born outside normal human coitus.
(2) Since a fundamental right must be given “careful description” (Conaway, quoting the Supreme Court’s Glucksberg decision), the right to procreate is fundamental only if it occurs within marriage.
(3) As a corollary, procreation outside marriage is subject to legislative regulation; our state legislatures have a duty to regulate it — with due regard for privacy and due regard for the fundamental rights of children.
(4) The right to marry is a fundamental human right, but it must be given “careful description.”
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