«NOS. 14-556, 14-562, 14-571, 14-574 IN THE Supreme Court of the United States JAMES OBERGEFELL, ET AL., Petitioners, v. RICHARD HODGES, DIRECTOR, ...»
At the time, the proponents of those laws assured their fellow citizens that this legal change would have no ill effects. See Barbara Dafoe Whitehead, THE DIVORCE CULTURE: RETHINKING OUR COMMITMENTS TO MARRIAGE AND FAMILY 81-90 (1996). But history has shown that those assurances were short-sighted and misguided. See, e.g., Helen M. Alvaré, The Turn Toward the Self in the Law of Marriage & Family: SameSex Marriage & Its Predecessors, 16 STAN. L. & POL’Y REV. 135, 149-50 (2005) (“most children of divorce … generally … experience greater emotional, financial, and other forms of distress than children in intact families, and over a longer period of time”); see also
Allen M. Parkman, GOOD INTENTIONS GONE AWRY:
NO-FAULT DIVORCE AND THE AMERICAN FAMILY 93-99 (2000).8 No-fault divorce transformed the public meaning of marriage from a life-long union to a union that lasts only so long as both spouses choose. This change signified that “marriage … exists primarily for the fulfillment of the individual spouses,” and that “[i]f it ceases to perform this function, no one is to blame and either spouse may terminate it at will.” Katherine Shaw Spaht, For the Sake of the Children: Recapturing the Meaning of Marriage, 73 NOTRE DAME L. REV.
1547, 1547 (1998) (quoting Mary Ann Glendon, ABORTION AND DIVORCE IN WESTERN LAW 106, 108 (1987)).
Before no-fault divorce, our Nation’s laws reinforced that divorce should not be a ready option, although it may be necessary in some circumstances. After nofault divorce, however, the law taught that divorce is always a ready option.
No-fault-divorce laws thus weakened the social expectation that parents should remain together and “[E]ven those who sponsored and initiated the principle of nofault divorce now understand the unintended consequences.
Katherine Spaht helped bring no-fault divorce to Louisiana in the 1980s …. By the end of the 1990s, Ms. Spaht was a key advocate for covenant marriage in Louisiana, a form of marriage that gave each spouse what was tantamount to ‘a right to marriage’ that could not be taken away unilaterally.” Marianne M.
Jennings, Unintended Consequences: The Flaws in “It Doesn’t Affect Anyone But Us” Argument in Favor of Legalizing Same-Sex Marriage, in WHAT’S THE HARM?, supra, at 69, 71.
jointly raise their children until they reach adulthood.
People living with no-fault divorce came to understand that the expectation of staying together for the sake of children gives way if either spouse is unfulfilled in their relationship. See William J. Goode, WORLD CHANGES IN DIVORCE PATTERNS 144 (1993) (no-fault divorce laws “helped to create a set of social understandings as to how easy it is to become divorced if married life seems irksome”).
As a result of this change in marriage’s meaning, social conventions now more readily permit the interests of adults in seeking personal fulfillment to trump the needs of children. Thus, in the end, the shift from fault-based divorce to no-fault divorce reinforced the adult-centered view of marriage.
Not surprisingly, the end result of these shifts in cultural understanding led divorce rates to increase above their historical trends. See Douglas W. Allen and Maggie Gallagher, Does Divorce Law Affect the Divorce Rate? A Review of Empirical Research, 1995Institute for Marriage and Public Policy Research Brief 1 (Jul. 2007);9 Parkman, GOOD INTENTIONS GONE AWRY, at 91-93 (summarizing available research); see also United States v. Windsor, 133 S. Ct.
2675, 2715 n.5 (2013) (Alito, J., dissenting) (discussing “the sharp rise in divorce rates following the advent of no-fault divorce”). This seemingly small legal change ushered in a culture where family “relationships are fragile and often unreliable.” Wallerstein, THE UNEXPECTED LEGACY OF DIVORCE, at 297; see also Available at http://www.marriagedebate.com/pdf/imapp.nofault.divrate.pdf.
Douglas W. Allen, An Economic Assessment of SameSex Marriage Laws, 29 HARV. J.L. & PUB. POL’Y 949, 975-76 (2006) (noting that no-fault-divorce laws created “a divorce culture” that “has lead to a society with … less commitment”).
That, in turn, has caused a significant increase in the risk of harm to everyone involved. Divorce tends to inflict physical and psychological distress on women, for example. See Hope, Rogers, and Power, supra. And divorced women typically face a host of financial hardships that married women generally do not. See infra at 31-32.10 Furthermore, these difficulties have particularly ravaged women and their children in underprivileged communities, whose members rely most heavily on, and therefore suffer most from the loss of, the institutional benefits of marriage.
See supra at 6-7 and n.6.
Changes in marriage laws can have effects far beyond the intended beneficiaries, as the experience with no-fault divorce laws illustrates. Such legal changes alter how society understands marriage, the expectations that people associate with marriage,
Divorce begins a prolonged process of residential and relastrong>
tional instability: families relocate; new romantic partners move in and out of the household; and many children lose contact with
their fathers. See Andrew J. Cherlin, THE MARRIAGE-GO-ROUND:
THE STATE OF MARRIAGE AND THE FAMILY IN AMERICA TODAY 16As a result, children whose parents divorce are at significantly great risk for a host of economic, behavioral, educational, social, and psychological problems. See Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 FUTURE OF CHILDREN 75, 75 (Fall 2005).
and, ultimately, the behavior of people when they interact with marriage. And sometimes those legal transformations will bring about adverse consequences that significantly dwarf their good intentions.
III. Redefining Marriage To Encompass SameSex Relationships Will Likely Harm Women and Children, Particularly Those in Disadvantaged Communities.
A. Redefining Marriage Transforms Its Public Meaning.
Redefining marriage will transform its public meaning. And it will do so in at least three profound ways that are particularly relevant to women and children in underprivileged communities. See, e.g., Joseph Raz, ETHICS IN THE PUBLIC DOMAIN 23 (1994).
First, it will remove the gender diversity that is an inherent part of the man-woman-marriage institution. It will establish that gender diversity is no longer an expected and valued part of family life— that neither the presence of a man nor the presence of a woman is considered important to family formation or the upbringing of children. See Brief of Amici Curiae Marriage Scholars, Part II.A.
Second, redefining marriage will eliminate society’s longstanding preference for biological kinship. It will “dispense with the principle that the individuals who give life to children should be the ones who raise them in a bonded and enduring relation.” Don Browning & Elizabeth Marquardt, What About the Children? Liberal Cautions on Same-Sex Marriage, in THE MEANING OF MARRIAGE 29, 45 (Robert P. George & Jean Bethke Elshtain eds., 2006). And it will prevent the government from affirming that the purpose of marriage is to connect a man and a woman to each other and to the children they beget.
Professor William Eskridge, a leading advocate of same-sex marriage, has candidly described how redefining marriage will bring about this “reconfiguration
of family” that deemphasizes gender diversity and biological-kinship ties:
[Redefining marriage] involves the reconfiguration of family, de-emphasizing blood, gender, and kinship ties …. In our legal culture the linchpin of family law has been the marriage between a man and a woman who have children through procreative sex. Gay experience with “families we choose” delinks family from gender, blood, and kinship. Gay families of choice are relatively ungendered, raise children that are biologically unrelated to one or both parents, and often form no more than a shadowy connection between the larger kinship groups.
Louis DeSerres, Preserve Marriage—Protect Children’s Rights (Canada), in WHAT’S THE HARM?, supra, at 103, 106 (quoting William N. Eskridge, Jr.,
GAYLAW: CHALLENGING APARTHEID IN THE CLOSET 11(1999). “Delink[ing]” children from their multigenerational families, for which Eskridge appears to advocate, could be particularly harmful in disadvantaged communities, where there is a high incidence of grandparents raising grandchildren, because grandparents’ willingness to maintain contact with grandchildren appears to be related to biological connections. See Megan Fulcher, et al., Contact with Grandparents among Children conceived via donor insemination by Lesbian and Heterosexual mothers, 2 PARENTING: SCIENCE AND PRACTICE, 61, 64, 72 (2002).
Third, redefining marriage will further separate marriage, sex, procreation, and childrearing. Yet unlike those prior changes, “the legalization of same-sex marriage would not be just one more example of the” separation of these historically related goods, “but the ultimate culmination that finally shifts the institutional logic of marriage and … marginalizes children from its basic meaning.” Browning & Marquardt, supra, at 46-47. This is because only man-woman couples are capable of connecting marriage, sex, procreation, and childrearing seamlessly in the biological home; same-sex couples simply cannot. Thus, redefining marriage will, once and for all, obscure marriage’s purpose of linking sex, procreation, and childrearing for the good of children. See Witherspoon Institute,
MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES 18(2008).
This change, in other words, will permanently ensconce an adult-centered view of marriage. It will include within marriage a class of couples that cannot, in and of their own relationship, create children—a class of couples that must involve someone from outside their relationship to bring a child into their home.
This new definition will thus sever the inherent connection between marriage and children and, in doing so, emphasize that marriage is designed for the adults who enter into it, rather than the children created from it.
Even more troubling, because a same-sex couple must necessarily borrow the procreative powers of others for their own child-rearing purposes, there is a serious risk of objectification—that the borrowed man will be reduced to the role of sperm donor, and the borrowed woman reduced to the role of egg donor and/or uterus lessor. In such transactional procreation, neither the same-sex couple nor the child is likely to fully appreciate the excluded man or woman, nor is an ongoing relationship likely between the child and the donor, thereby depriving the child of any connection to his or her biological parent. See, e.g., Camille Williams, Planned Parent-Deprivation: Not In the Best Interests of the Child, 4 WHITTIER J. CHILD & FAM. ADVOC. 375 (Spring 2005).
B. This New Understanding of Marriage Will Have Adverse Real-World LongTerm Effects.
Adverse effects on already disadvantaged women and their children have been overlooked by supporters of same-sex marriage, as the influence on human behavior that will results will have adverse consequences unevenly distributed throughout society, falling most heavily on poor women and their children.
Indeed, present trends suggest that those consequences will fall with disproportionate weight on disadvantaged communities.
Moreover, the consequences of redefining marriage will occur over time. No serious scholar argues that if marriage is redefined to include same-sex couples, man-woman couples will run to the courthouse and dissolve their marriages tomorrow. Rather, the adverse effects will occur over time as more and more people are socialized by, and live consistent with the implications of, this new understanding of marriage.
When a massive ship fundamentally alters course, it takes time for its new path to manifest itself.
The projected consequences discussed below will likely begin to take root soon after marriage’s redefinition, but will become more readily apparent after a generation grows up with this new understanding of marriage. Indeed, once one generation has been socialized in a world where the government does not—and cannot—promote the biological home as an ideal family arrangement; where men and women are viewed as interchangeable, nonessential facets of family life; and where the law has cemented marriage as a mere governmental capstone of a loving relationship, some people will inevitably make different choices concerning marriage and family formation.
Those choices will tend to elevate the desires of adults in their quest for love and fulfillment above society’s need for family stability. Inescapably, this change in people’s behaviors will have grave consequences for society.
Nor will the redefinition of marriage affect all segments of society equally. See Wax, Diverging, at 60 (“[T]he success of social mores in shaping behavior will vary depending on circumstances … and group culture”). The institution of marriage provides a template for people to follow in structuring their family lives. Id. It thereby “reduc[es] the need for individuals to perform the complicated calculations necessary to chart their own course.” Id. Thus, the communities that rely heavily on a social institution’s easy-to-follow guidelines to direct their decision-making processes, such as the socioeconomically disadvantaged, will be most significantly harmed by the erosion of marriage’s template for family life.