Two of the more interesting (where "interesting" is a euphemism for "horrifying") aspects of the debate over gay "marriage" are inexorably intertwined: the decision by the movement's backers to pretend that there is no strong connection between marriage and children (this is overwhelmingly done by those who do not have children) and a separate but related track to "get government out of marriage," which is treated as some sort of tactical decision to, er, divorce government from its ability to decide who may marry and when.
The former is overwhelmingly done by libertarians who have taken the curious position that the failure by the state to expand a right is the same as the affirmative denial of that right, and by liberals who do not understand what rights actually are. The latter is a position taken by libertarians who believe the state's role in marriage reaching back centuries is part of the nanny state, and conservatives who either legitimately want to preserve marriage from the barbarians or who like sounding good to their more left-wing friends.
Yet it is in the confluence of these two fantasies that the lie of both is exposed. I think it is helpful, as we embark on destroying yet another social institution and just assuming something else will pop up in its place, to understand what we are doing and what its likeliest consequences are.
These consequences, of course, somehow involve children.
The Courts Are the Government.
Proponents of the government-out-of-marriage movement -- and here I deal with good-faith conservatives who think they're somehow creating a firewall against the universalist and statist tendencies of liberals and the American people as a whole, and libertarians who imagine a world with a private interstate highway system and unicorn herds running alongside -- seem never to say get the government out of divorce, either because it does not occur to them that this is necessary or that the government is somehow involved in divorce. It's a court thing, right?
But courts are a part of a functioning government. Just because liberals managed, through a particularly deft sleight of hand, to trick themselves into believing that the courts are a redress against the government instead of what they are -- a redress against the executive and only with the executive's acquiescence -- does not mean the rest of us need to buy into this fallacy. The first clue that the courts are the government is that in the United States, the Constitution as originally drafted for the most part only enumerates the powers of the government. It's easy to get lost in place of all the funny-looking S renderings and weird capitalizations of nouns, but if you make it to Article III, you'll find a judiciary there.
But that's not all. In our system, a court has not even the tiniest bit of power on its own. While this is something of a change over the last couple of hundred years, it is within the historic ebb and flow of how courts function. When a court issues a judgment -- whether from a verdict or not -- it relies on the executive to enforce it. In the simplest example, when a court finds a defendant guilty of a crime, the executive -- the police, the sheriff, the constable -- must take the defendant into a heightened custody and either take his money, take his freedom, or take his life. In a civil case, a judgment is usually enforced through the voluntary actions of the parties or their agents (garnishing a bank account, the insurance company paying, etc.); but that voluntary compliance is ultimately in lieu of the sheriff seizing property and selling it to satisfy the judgment.
I should note, somewhat crudely, that judges are not paid by money dropped in the offering basket during trials.
Courts are not merely a part of the government, they are a particularly pernicious form of the government. Whether elected or selected, judges are disproportionately lawyers. As a member of multiple Bars, I am here to tell you that this is not always a good thing -- but we'll get to why in a moment. But because the judges are lawyers, and their lawmaking is essentially done by, for, and through lawyers, the system is adversarial and neither directly representative nor directly democratic, no matter how the judge came to be a judge in the first place.
Excellent question. I begin by noting that yet another place in which the state is intertwined is the act of dissolving a marriage. This is done either through annulment -- a place the state has had for centuries, even when marriage was not done through the state -- and through divorce. Great, heaping reams of paper have been created, whole forests massacred, just to record the court decisions and statutes that set out the rights of the parties in an annulment or divorce.
Now, the reason for this is that, at its crudest level, a marriage is a contract. It is a special contract, but it is nevertheless a contract. And for hundreds of years of common law, redress for a contract unmet, pre-emptively breached, invalid from the beginning, or to be ruptured, the state, through the courts with the executive's enforcement, has been the arbiter. While this is on balance probably a good thing -- clan warfare would favor my family through sheer numbers, but it could get messy for everyone else -- denying it is silly.
In the last forty years, we have liberalized the unholy Hell out of divorce and then, more or less belatedly, realized that there were small humans involved too. As the divorce codes have -- more or less -- simplified, the codes and court decisions involving what to do with the small humans who magically appeared during the totally-non-procreative contract have multiplied.
Weird, right? Freaking storks and cabbage leaves.
Courts, following their own rules and the rules the legislatures have created, with the enforcement of the executive, decide what happens to those small humans.
Let Me Enunciate This for You.
This is true on almost every level. It begins with something as simple as the person in charge of and who has -- what's the word? -- parental authority and rights over the small humans. At common law -- to my knowledge, even now the law of almost every state -- a child born into a marriage is presumed to be a child of the marriage. That is, the husband is presumed to be the father, the wife the mother.
Let us assume same-sex "marriage" becomes the law of the land -- or if you prefer, that it's treated as a private contract, it works either way -- and a hypothetical that flows from that. In a "marriage" between two lesbians, one somehow gets pregnant. I guess if we were to graft this assumption onto that couple, the non-pregnant one is the father, thereby not merely butchering the words "marriage," "wife," and "husband," but "father" as well. Now, what happens when the actual father, the biological one, pops up and claims his parental rights? Each state resolves this question differently, but the underlying assumption is that the marriage at issue involves a male and a female, and that the female gave birth, and so the male is presumed to be the father, absent pretty impressive evidence to the contrary.
But in that lesbian "marriage", should the other woman who despite our linguistic contortions cannot father children be presumed to be a parent? Should the standard for establishing paternity be lowered? Is she entitled to the presumption that the child is hers? Is that itself (or its contrapositive) a violation of the Equal Protection Clause (and state variants)?
(Anyone who thinks that the state is going to get out of the business of deciding child custody, leave the room now. The adults are talking.)
And That's Not All, Folks.
Let's assume that lesbian couple survives the challenge by the actual father and later divorces. Let's make it lots of fun and say that the biological mother has re-discovered the Catholicism she intermittently practiced while "married," and the other has not rediscovered Orthodox Judaism. The kid was raised for her first four years as if by modern Jesuits, i.e., with something like what happens if a Unitarian and a high-church Episcopalian merged to form Unipalian with Mom proudly asserting, as if a Northeastern Catholic, that this was the real Catholicism.
During the divorce proceedings, the judge, a committed progressive because she is a lawyer, unsure how to favor two women in the same marriage at once, flips a coin and gives joint custody which somehow manifests as it usually does with Mom having primary custody in all but name. Mom spends a lot of time in various penances and ends up happily married (or unhappily married!) to an actual man. "Dad" "marries" another woman.
Mom starts actually raising her daughter Catholic, as in the real thing. She carefully teaches her daughter that "Dad" must not be called "Dad," nor "Mom," and is sinning by being "married" to another woman. She must love and care for "Dad," but recognize that "Dad" is struggling with the terrible burden of a propensity to sin, as are we all.
"Dad" rushes to court and cries that in that totally government-got-out-of-it "marriage," they raised the daughter as their own; the child is her child by virtue of the marriage; and Mom is poisoning the child against her. Mom retorts that all she is doing is raising the kid Catholic, as they had done when "married." Furthermore, the Church infallibly teaches that the propensity to perform homosexual acts is, like any other propensity to sin, intrinsically disordered, and that marriage is between one man and one woman only.
That same judge who set up the custody order get uncomfortable and first rules that the teachings about marriage and sexuality are not core teachings of Catholicism, so Mom may not teach them because they will harm the relationship with "Dad." Mom asks the ACLU for help and is surprised by the laughter. Mom nevertheless successfully appeals the ruling and so the trial judge is admonished not to decide what is and is not a core teaching of a religious faith; but must still resolve this dispute.
So she then tries to instruct the mother not to instruct the daughter in Catholicism in a way that will alienate the daughter from "Dad". The result is broadly the same, and here comes another appeal.
This time, the appellate court agrees with the trial court, and the daughter can functionally no longer be raised anything other than Northeastern Catholic, that is, Unipalian. A biological mother has been denied the right to raise her daughter in the faith of her choosing by the state -- which again, is what the court is.
(This machinery works equally well if you imagine a husband and wife divorcing, with the wife "marrying" another woman, and the husband trying to raise his daughter Catholic/orthodox Christian of any kind/Orthodox Jewish as the family had before the divorce. I expect it wouldn't happen with a Muslim father, because the judge would be scared of being killed.)
And here's the real sting: access to the courts, no matter what you may otherwise hear, is pay-to-play. You can't afford a lawyer to fight to protect your right to raise your child in the religion of her birth? You will more likely than not lose.
That Wouldn't Happen.
There aren't many realistic ways to assert that. You'd have to remove courts from the resolution of contract disputes -- what a divorce at its heart is -- or you'd have to remove courts from deciding child welfare and custody. (The standard to which most states laughably pretend to direct courts in determining custody, visitation, etc. is "the best interest(s) of the child.") As someone who has litigated alongside and against child protective services in three different states, I would leap at that option. I would leap virtually apart from the American people, other than a tiny fraction of the right and those parents who have been victimized by the petty bureaucrats given a chance to torture parents for reminding them of the creepy uncle who scared them once.
The rest of America would be horrified and would never ever ever let courts get out of that business, or the business of deciding child custody. And frankly, though they usually screw it up, I'm hard-pressed to imagine the alternative myself.
Child Protective Services? Non Sequitur Much?
Nope. In fact, that leads to the next point.
Let us imagine a state in which a child can be punished for telling another child who has a penis and testicles that the latter child is in fact a boy, and not a girl, despite the fact that the child with the penis and testicles insists that his name is actually Loretta and he self-identifies as a girl.
Let's call this imaginary place "Massachusetts."
In light of the potential social and educational penalties that child would face for acting on such a belief, what kind of sickos would teach their kids that homosexual acts are sins, boys who think they're girls need medication and not surgery and enabling, and that same-sex marriage is an oxymoron?
If you think some group of pretend-science major (sociology, psychology, etc.) social workers have not already harbored such a thought, I pray you don't have children and never will. If you think they won't in that imaginary state where those beliefs and the acts that flow from them pose a threat to the child's social and educational status and development (and those of the children around them), then be thankful you don't live there.
Not only will they, they should. If society has decided that children cannot be healthy and safe unless they pretend that science and nature and orthodox religious faith are bunk, teaching children to the contrary really is abusive in society's eyes. Those basketweaving majors in whom the ability to strip parents of their children is vested will be encouraged and required to exercise their duty to screw up people's lives.
And if you think a judge in a custody case won't take this into consideration, I hope and pray you don't practice family law.
Gay "Marriage" Directly Impacts Children and Parenting Because Marriage is About Children.
Because this has already gone on long enough, I'm not even getting into things that conservatives have known for a very long time that give the lie to the idea that the institution of marriage won't suffer because of gay marriage -- such as the idea that public acts have private consequences. Just because your wife won't leave you over two dudes pretending to get hitched with state sanction doesn't mean kids at the margins will come to think of marriage as less special as we treat it that way. The danger to marriage is as it has been for four decades -- at the margins, margins that shrink inward over time as children watch the effects of social corrosion on their parents and those around them.
The problem for the two groups I mentioned at the start of this is that marriages still produce children; marriages are founded on children; and government will have a role to play in marriage, through children, even if government "gets out of it." Many conservatives -- and libertarians, when they can bother to remember that they care about rights not related to sex -- talk about protecting religion in the public square as a bulwark against the dangers of gay "marriage," either ignoring or forgetting that the private exercise is at issue as well.
The ability to transmit one's faith to one's children is vital to every faith other than the Shakers, and that is what will come under the most direct assault. The Left will see yet another chance to destroy those parts of civil society that stand between their government monolith and the people; libertarians will pretend to protest (and some even really will!); and the American people will come along for the ride.
Anyone who doubts that last part need only observe the wild success of 2012's Kulturkampf against the Catholic Church.
Worse, there is no easy cure here. Americans are terribly polite people who don't want to be seen as mean or hateful, and so they have already largely signed up for gay marriage. We know from the history of the civil rights movement that institutions that stand in the way of a changing zeitgeist get bulldozed or become the Episcopalians.
There will be no consolation of a private marriage, nor pretending children are not at its root. The bulldozer is coming, and children are in its path.