The Marital Spectator

For the Kids

Maryland governor Martin O'Malley introduces a new argument for gay marriage.

By 8.18.11

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At a news conference on Friday July 22, Maryland Governor Martin O'Malley said that he would not only support, but would actually sponsor, a bill to allow same-sex marriage at the next legislative session that convenes in January.

He explained his support in these words:

At the end of the day, I think all of us need to look at this issue from the eyes of children of gay, committed couples and ask ourselves how one family could be protected less in the eyes of the law than another family. I don't think that's an injustice that can be allowed to stand.

So, the Governor supports same-sex marriage for the sake of the children of same-sex couples. This is a new argument in two respects.

First, supporters of same-sex marriage have argued in court that the traditional definition of marriage cannot be justified by the biology of human sexual reproduction requiring one man and one woman. They say that such a justification is overly broad since it includes heterosexual couples who cannot have children (for reasons of infertility due to age or dysfunction) or will not have children. They want same-sex marriage without regard to children. Now Governor O'Malley argues for same-sex marriage based on the children. Talk about overly broad! He wants us to upend our laws on marriage to allow all same-sex couples to marry -- based on the subset of them who are adoptive parents although no same-sex couples can ever have children naturally and many will never have any children by adoption.

Second, supporters of same-sex marriage had argued for years that love trumps all, that same-sex couples who love each other should be treated by the law the same as heterosexual couples. But the law does not require heterosexual couples to love each other -- either to marry or to remain married. If we adopt love as the principle to guide us in refashioning our marriage laws, then that principle should allow blood relatives who love each other and ensembles of more than two who love each other to marry. The Governor does not rely on love among prospective partners as the guiding principle for refashioning marriage. He makes a new argument.

Governor O'Malley asserts that, for the sake of the children, the law should protect all families of children to the same degree. When he refers to "family," he means at least the parents, but he may well mean all members of family. What was he thinking?

Let's begin with how it is that homosexual couples become parents of children. It is not natural. Two eggs or two spermatozoa do not form children. Rather, it starts with one homosexual individual becoming a parent to a child, either through coitus, artificial insemination, a surrogate, adoption, or a partner from a previous relationship surrendering parental rights. But the second homosexual individual becomes a parent only through adoption. Thus, no homosexual couples would be legal parents unless the laws allowed at least one half of the couple to adopt.

When the governor says families of children should be treated equally, he is really saying that whomever the law allows to adopt should be treated the same as any other parent. So we ask the antecedent question, "Whom does the law now allow to adopt, and whom might the law in the future allow to adopt?"

This past April there was a debate in Virginia over whether the rules that allow only married (in Virginia, this means heterosexual) couples and single individuals (of any sexual orientation) to adopt should be changed to allow unmarried couples (including gay and lesbian couples) to adopt, as well, and requiring faith-based adoption agencies to process such adoptions.

That same month, the Arkansas Supreme Court ruled that this is not an issue subject to the legislature's, or even the people's, judgment, but rather is an issue for the judiciary. The Arkansas high court then promptly overturned a 2008 state law that banned adoption by unmarried couples on the basis that this law violated the Arkansas constitutional right to privacy and did not serve the best interests of the child.

From the viewpoint of the adults (the prospective parents) the court said the 2008 law presented a "pernicious choice": they can "either give up their fundamental right to sexual intimacy in [their] homes free from investigation by the State into [their] sexual practices in order to adopt or foster [children] or [they can] forego the privilege of having children by adoption or fostering."

From the viewpoint of the children, the court observed that the law explicitly stated that "[t]he people of Arkansas find and declare that it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabiting outside of marriage." Nonetheless, the court held that some people cohabiting outside marriage would be suitable as adoptive or foster parents. The court held that, "[b]y imposing a categorical ban on all  persons who cohabit with a sexual partner, [the law] removes the ability of the State and our courts to conduct . . . individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents."

The problem with Governor O'Malley's stated principle is that he would look to the laws of adoption to see who should be allowed to marry -- and, as we see from Arkansas, those laws have little to limit them. By the Governor's principle, he would have the law allow all people who are now, or can be in the future, adoptive parents to marry other adults who are members of their "family."

• Members of the "family" allowed to marry under the Governor's principle need not reside in the same home with the children; they may live on the other side of town or on the other side of the planet -- just as natural parents do.

• Members of the "family" allowed to marry under the Governor's principle need not be in a sexual relationship with each other. Members of the "family" may include grandmothers and aunts and cousins and persons unrelated by blood. So, a woman who has adopted a son's child could marry the child's aunt.

• Unmarried couples who are members of the "family," even if they are heterosexual, who have adopted should be treated like couples who are married because that is what the Governor says should be the case.

• And the Governor does not limit to two the number of adults who serve as parents and can marry. On July 20, law professor Jonathan Turley published an op-ed piece in the New York Times arguing, as he does on behalf of his clients (one man and several women), that polygamy is protected by the right of privacy vis-à-vis the State of Utah.

So, the Governor's principle of treating families the same for the sake of the children gives us the same results as those who make love the guiding principle on refashioning marriage: blood relatives may marry, and polygamists may marry.

Once we have left the realm of the biological reality that human reproduction is achieved through just two people -- one male and the other female -- there are no limits on refashioning marriage. In our attempt to escape our reality, have we learned nothing from the efforts in the past couple hundred years to remake man?

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About the Author
James M. Thunder is a Washington, D.C. attorney.