I’ve got to run and do some chores, but I wanted to post this section from the Massachusetts Supreme Court’s decision. It’s become clear that the anti-equality bigots (I’m sorry to use such language – some of the anti-equality bigots are people I respect and consider friends – but there are times when we should call a spade a spade) who oppose gay marriage have fallen on “marriage is about the children” as their last pretense at a rational reason to oppose gay marriage.
Anyhow, the Massachusetts court decision does a wonderful, succinct job destroying the anti-equality case. Although some of the argument is specific to Massachusetts law, much of it is generally applicable.
Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual. If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as “the source of a fundamental right to marry,” post at (Cordy, J., dissenting), overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.
The “marriage is procreation” argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like “Amendment 2″ to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly “identifies persons by a single trait and then denies them protection across the board.” Romer v. Evans, 517 U.S. 620, 633 (1996). In so doing, the State’s action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.
The department’s first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the “optimal” setting. Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. “The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household.” Troxel v. Granville, 530 U.S. 57, 63 (2000). Massachusetts has responded supportively to “the changing realities of the American family,” id. at 64, and has moved vigorously to strengthen the modern family in its many variations. See, e.g., G. L. c. 209C (paternity statute); G. L. c. 119, § 39D (grandparent visitation statute); Blixt v. Blixt, 437 Mass. 649 (2002), cert. denied, 537 U.S. 1189 (2003) (same); E.N.O. v. L.M.M., 429 Mass. 824, cert. denied, 528 U.S. 1005 (1999) (de facto parent); Youmans v. Ramos, 429 Mass. 774, 782 (1999) (same); and Adoption of Tammy, 416 Mass. 205 (1993) (coparent adoption). Moreover, we have repudiated the common-law power of the State to provide varying levels of protection to children based on the circumstances of birth. See G. L. c. 209C (paternity statute); Powers v. Wilkinson, 399 Mass. 650, 661 (1987) (“Ours is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy”). The “best interests of the child” standard does not turn on a parent’s sexual orientation or marital status. See e.g., Doe v. Doe, 16 Mass. App. Ct. 499, 503 (1983) (parent’s sexual orientation insufficient ground to deny custody of child in divorce action). See also E.N.O. v. L.M.M., supra at 829-830 (best interests of child determined by considering child’s relationship with biological and de facto same-sex parents); Silvia v. Silvia, 9 Mass. App. Ct. 339, 341 & n.3 (1980) (collecting support and custody statutes containing no gender distinction).
The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth’s proffered goal of protecting the “optimal” child rearing unit. Moreover, the department readily concedes that people in same-sex couples may be “excellent” parents. These couples (including four of the plaintiff couples) have children for the reasons others do — to love them, to care for them, to nurture them. But the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws. While establishing the parentage of children as soon as possible is crucial to the safety and welfare of children, see Culliton v. Beth Israel Deaconness Med. Ctr., 435 Mass. 285, 292 (2001), same-sex couples must undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage. While the enhanced income provided by marital benefits is an important source of security and stability for married couples and their children, those benefits are denied to families headed by same-sex couples. See, e.g., note 6, supra. While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of a marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity jurisdiction. See E.N.O. v. L.M.M., supra.
Given the wide range of public benefits reserved only for married couples, we do not credit the department’s contention that the absence of access to civil marriage amounts to little more than an inconvenience to same-sex couples and their children. Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of “a stable family structure in which children will be reared, educated, and socialized.” Post at (Cordy, J., dissenting).
No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature’s conclusion that marriage “is the foremost setting for the education and socialization of children” precisely because it “encourages parents to remain committed to each other and to their children as they grow.” Post at (Cordy, J., dissenting).
In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation. […]
The department suggests additional rationales for prohibiting same-sex couples from marrying, which are developed by some amici. It argues that broadening civil marriage to include same-sex couples will trivialize or destroy the institution of marriage as it has historically been fashioned. Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.
Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.