An institution we can't do without
Civil marriage and religious marriage serve different purposes in our democratic society. Civil marriage is a contract between two adults and the government through which we govern such vital matters as a couple's responsibility to each other and their children. We need civil marriage so the legal system has a way of answering such questions as who inherits in the absence of a will, who gets to make medical decisions for someone who is incapacitated, which communications get to be kept confidential, who must file their taxes jointly and who has an obligation of financial support.
Religious marriages, on the other hand, are defined by the many faiths present in our pluralistic society, and the right to hold different religious views on marriage is protected by the constitutional principle of church-state separation. Those of us who are working tirelessly for same-sex couples to have the right to marry under civil law also strongly support the principle that the government may never tell religious groups what to teach or do with respect to marriage by same-sex couples. That's off limits, and nothing in the decisions by the high courts of California or Massachusetts affects religious freedom.
California cannot get out of the marriage business and leave it up to churches and other groups because, in the state Supreme Court's words, we need some form of "official government sanction" of the family unit. Changing this would be an extreme strategy undertaken solely to keep same-sex couples from marriage. While racism is quite different, this purported "solution" in some ways is reminiscent of what some saw as a way of getting around integration. In some Southern cities, public parks and swimming pools were closed altogether rather than allow African Americans in. In place of these services, private bodies took over what formerly were government functions. That was an unfortunate response. But unlike pools and parks, the public institution of civil marriage must exist.
The California Supreme Court considered but did not rule on this issue. Even if there were a way for the government to assign rights and responsibilities equally to all people under a name other than civil marriage, it would be unwise to have the government get out of the marriage business completely. Other states and the federal government do not treat religious or private ceremonies as adequate in themselves to confer legal rights. If California were to stop issuing marriage licenses, different-sex couples would face major problems whenever they crossed state lines or dealt with the federal government. They would encounter the troubles faced by registered domestic partners as a result of the fact that many jurisdictions outside California do not honor a union that is not a government-provided marriage.
All same-sex couples seek is the opportunity to enter the same status of civil marriage -- under the same name and subject to the same rules -- that is available to different-sex couples. That's what the constitutional guarantee of equality (as well as simple fairness) requires.
I'm not sure what you'll think about this issue, Glen. In our briefs to the state Supreme Court, we both acknowledged that California's Constitution currently protects civil marriage and even the name "marriage" itself. We hope that won't be changed -- not for gay people or heterosexuals. We think our Constitution shouldn't be amended to provide anything less.
Jon W. Davidson is the legal director of Lambda Legal, a nonprofit legal organization dedicated to protecting the civil rights of lesbians, gay men, bisexuals, transgender people and those living with HIV. Lambda Legal was counsel in the case that led to last week's decision from the California Supreme Court.
A social experiment that may fail
We both agree that the government needs to be involved in marriage, but I think we approach this much differently. Throughout the litigation, you focused on why people marry and the benefits the state gives them, and that is the approach the California Supreme Court adopted. We focused on why the state regulates marriage. Focusing on why people marry instead of why the state regulates marriage is like focusing on why people drive instead of why the state regulates driving. Only the latter is relevant to the validity of any regulation. And the state's reason for regulating marriage is what is relevant to the validity of the marriage laws.
What justifies state regulation of a private, consensual adult relationship? The answer to that question involves the biological reality that when men and women of childbearing age have sexual relations, children are the natural result. A marriage license is not a "license to reproduce," but it is the primary way of funneling the inevitable reproduction of children into families consisting of their own biological parents -- that is, it is the mechanism the state uses to encourage the best possible environment for children.
The core issue that marriage regulation seeks to address is sexual reproduction. Sure, the legal system benefits by having default rules for inheritance without a will, as you point out, Jon. But in the absence of children, the remaining interpersonal benefits and obligations could just as easily be regulated by contract. And they often are.
The state has a compelling interest, however, in ensuring that as many children as possible have a legal relationship with their own married mom and dad. Every child has a biological mom and dad. The nonpartisan social science overwhelmingly agrees that, all other things being equal, children generally do better when raised by their own married parents. That saves the state a bundle of money.
A recent study by economist Ben Scafidi (pdf) found that single parenthood and family dissolution costs California taxpayers $4.8 billion a year. So how would same-sex "marriage" impact that cost? If same-sex relationships in Norway and Sweden as reported in a 2004 study (pdf) are a harbinger of things to come in California, male couples will be about 50% more likely to divorce than opposite-sex couples, and the divorce rate of female couples will be nearly double that of male couples. And, according to David Blankenhorn's book, "The Future of Marriage," there is evidence suggesting that when states adopt same-sex "marriage," opposite-sex couples are more likely to decide that there is no need to get married prior to having children (cause and effect is an open question, but the correlation is definite). An increase in single parenthood and family dissolution would be harmful to children and generate significant additional costs to the taxpayers.
One of the problems with the court's decision last week is that it didn't consider any relevant evidence. Unlike interracial marriage, which has existed for thousands of years, we have no way of knowing what outcome to expect for a generation of children raised by same-sex couples. Proponents of same-sex "marriage" have prepared studies designed to persuade courts that all children need are two parents, not necessarily opposite-sex ones. But the research is statistically and methodologically weak and insufficient to meet the ordinary burden of proof for establishing an equal-protection claim. By declaring same-sex relationships the full equivalent of marriage on the basis of the majority's instincts, the court has thrust California into a monumental social science experiment whose results will not be known for decades.
Yes, Jon, the state must regulate marriage; churches or private contracts cannot do it. But the reason the state needs to regulate marriage has nothing to do with same-sex couples. It is all about the natural family.
Glen Lavy is senior counsel with the Alliance Defense Fund, a legal alliance of Christian attorneys and like-minded organizations dedicated to protecting religious liberty, the sanctity of life, marriage and the family. ADF and Lavy have been involved in same-sex marriage across the country, including the recent decision from the California Supreme Court.