The legal purpose of marriage

Marriage isn’t about individual couples. All children are protected by the State, regardless of their birth. If couples split, married or not, any parent can certainly petition the courts for visitation, custody, etc. This applies even to unmarried gay couples! I personally know one woman whose partner was killed in a car accident, leaving her biological daughter (via IVF) without a legal mother. The dead woman’s family attempted to gain custody of the little girl, but my friend was able to successfully petition the courts and was granted full custody and legal guardianship of the child. Which is as it should have been. Marriage protects children only in a general sense. Marriage ties parents together, making a child less likely to be abandoned by one or the other. This is how marriage protects children.

The only reason why government ever got into the business of marriage was in an attempt to lessen the costs to the state of abandoned children. Without some incentives, sadly, the male nature is frequently to move on to greener pastures. The children abandoned by the fathers then were at far greater risk of becoming a financial and societal burden upon the state. It made sense for the government to impart some benefits on couples to encourage them to stay together and co-parent their children, as this would "cost" less than the burden placed on government without such measures.

The state doesn’t grant marriage benefits to male/female couples simply because it likes them, but doesn't like any other type of couple. It has nothing whatsoever to do with the couple at all. It has only to do with lessening the risk to the state by encouraging parents to stay together for the sake of their children.

It makes no sense for government to give benefits to couples who will not have children, as there is no burden to society if such unions should break up. It also doesn't make sense for a government to give benefits encouraging the formation of family units that will not benefit society, but which will ultimately "cost" government more than the cost of the benefits. It's a pretty cold-blooded way to look at marriage, but that is the only reason government ever got involved. Church marriages and vows before God or family, or whatever, have nothing to do with government interest in minimizing the burden to society. Churches can solemnize marriages between whomever they choose. So when looking at a legal change in the definition of marriage, you have to come back to this equation. Will the expansion of marriage benefits ultimately cost the state more or less? And this cost needs to be evaluated both in terms of actual dollars and in terms of the healthy propagation of the sort of society the government wishes to advance.

So let’s examine same sex unions in these terms. First, if there are no children involved, then there is no reason for government to grant marriage benefits. The costs of courts, judges, and lawyers in divorces, not to mention lost revenue in tax benefits, etc., are a burden upon the state, with no compensating benefit to the state. Thus in our cost-benefit equation, clearly there are far more costs than benefits to the state in benefiting childless unions. (Remember that we’re talking about general groups here, not individual couples-- obviously the government shouldn't deny marriage to a couple based on their individual ability or lack thereor to have children). Up until quite recently, the vast majority of gay couples did not have children. Thus no reason for the state to grant marriage benefits to same-sex couples.

Times have changed, and more and more gay couples are now attempting to have children, either through adoption or insemination/IVF. So now the government needs to decide if the benefits of encouraging these families outweighs the costs of expanding marriage benefits. There are a few ways of looking at this issue. First, in terms of actual dollars, second, in terms of societal costs.

There has not been a great deal of sociological research done on children with gay parents. This is one of the biggest reasons why so many people are hesitant to embrace gay marriage. We simply don’t know enough about the consequences of such a societal change, and we know that life has a way of bringing about unintended consequences. But there are a few things we can deduce from existing research.

There is no question that children raised by single mothers are far more likely to cost the state more than children raised by a mother and father. Single mothers are statistically far more likely to be dependent upon the state for welfare, Medicaid, food stamps, etc. And their children are statistically far more likely to commit crimes and end up in prison (huge cost to the state), and perpetuate the cycle of poverty. Clearly it is not in the state’s best interest to encourage single-mother families. This is why it is such a terrible idea to increase welfare benefits every time a woman has another baby. This does nothing but encourage the mother to have more and more children in a situation and environment where they pose a significant risk of costing the State enormously. There are very few single-father families so we don’t have the data to be able to determine if the same patterns exist for single-father families. (My opinion is that the influence mothers and fathers have on children are both equally crucial, but very different. I think there are likely serious consequences to children (on a statistical level) raised without a mother, but they will probably be different than the consequences of not having a father.)

So the question is this. Why are single-mother families so much less likely to succeed by society’s standards? Is it because of poverty? Or is it because of the lack of a father in the household? Well, poverty certainly is a risk factor, but you can tease out the effect of a lack of father in the home by comparing single-mother families with mother-father families in the same socio-economic bracket. And sure enough, you see that single-mother families are at far greater risk than mother-father families. So how does this relate to gay marriage? Are two-mother families at less risk than single-mother families? (Controlling for poverty, of course). If so, then clearly the presence of an additional parental figure in the home, regardless of gender, puts a child in a lower risk category. This would seem to support of the legalization of gay marriage, and it does, except for the fact that this very line of reasoning applies equally well to the legalization of polygamist marriage. You can’t have one without necessitating the other.
It is also possible that children of two-mother families (controlling for poverty) actually have the same risks (in terms of costs to the state) as children of single-mothers. If this is so (again, research is paltry and there is no conclusive evidence one way or the other), this clearly implies that it is the presence of both genders in the home, and the unique way in which they interact with each other and influence their children that stabilizes the family. This certainly would support the position of leaving the definition of marriage as-is. It does not benefit the state to impart financial benefits to unions which will produce children at equal risk of costing the state, as if the union had not been formalized by the state. In this case, the cost of the benefits to legalize such unions outweighs any potential reduction of cost to the state of the children.

So if you decide that it is worth it for the state to benefit and encourage gay marriage, you must also agree that it is encumbent upon the state to encourage and benefit polygamist marriage. One logically extends to the other, and there is no way to legalize one without legalizing the other, because the same reasons why the government would decide to legalize gay marriage (our cost-benefit equation), apply equally as well to polygamist marriages. The same reasoning also applies to the argument for legalizing marriage between incestuous couples. If the only thing that matters is that another adult is in the home, then why should it matter if the two adults are siblings? (The risk of homozygous genetic disorders in children born from closely-related parents is actually very small, not much more than the risk of genetic disorders in children born to older mothers. I think the argument against sibling marriage based on the genetic risk to resultant children is a straw-man).

But the issue doesn’t end there. Let’s say that children of same-gender, polygamist or sibling parents truly are not at any greater risk than children of mother-father parents. This would lend support to changing the legal definition of marriage to include, at least, gay couples, sibling couples, and polygamist groups. But part of the equation the government must evaluate, is the costs to the type of society the government chooses to advance. A society built upon the basic unit of mother-father-children is different than a society built upon the much expanded unit of mother-mother-children, father-father-children, multi-adults-children, sibling-sibling-children, etc. They are not the same, and the government needs to decide which sort of society it wishes to advance, because it cannot simultaneousy advance both.

The big question is this: Who gets to decide if we should change the fundamental unit of a society? In a democratic society, I believe it should be the voice of the people. If we, as a society, decide that we want to encourage and increase the formation of different kinds of families by expanding the legal benefits of marriage, then we need to follow democratic procedures. This is already being done on a state-by-state basis, and that is fine. I may not like it, but I can always choose to live in a different state. And if as a nation we decide we want to formally change the definition of marriage through Constitutional amendments or what have you, again, I may not like it, but such is the cost of living in a free society. Sometimes the people will freely choose something I don’t like. However, what most proponents of keeping marriage between an unrelated man and woman so vehemently oppose, is the strong-arm tactic many people on the other side of this issue are using: the use of the courts to mandate something that a) may not be in the best interest of the state, and b) is in opposition to the will of the people.

This is why people on the right desire strict-constructionist judges. Not because we insist that everything in our society remain exactly as it was in 1790. Obviously times change, societies evolve. That is the beauty of the amendment process. But we want judges who will respect, not only the Constitution, but also the rule of law in the United States, and respect the will of the people and the amendment process. That is why it is so galling to us to see "progressive" judges taking end-runs around the Constitution and the will of the people, and forcing their own opinions and interpretations and desires upon all of us. That is not the democratic way. I would not oppose the people attempting to amend the Constitution to secure marriage rights for any sort of couple. Well, I wouldn’t vote for such an amendment, but I wouldn’t oppose the people’s attempt, if that makes sense. But I vehemently oppose the tactic of shopping around for judges who will simply make rulings in favor of a specific group, Constitution and the people be damned.

Remember that none of this has anything to do with individual freedoms. The government does not prevent single mothers from having children, nor does it prevent lesbian couples from undergoing inseminations, or gay couples from adopting infants from surrogate mothers, or anyone from adopting waiting or special needs children. I would be opposed to the government trying to impose such restrictions on these individual liberties, no matter how much I disagree with the particular exercise of freedom.

The question of gay marriage is this: Is it in the best interest of the State to encourage (and therefore increase) the formation of same-sex parented families (or polygamist families, sibling-couple familes, or what have you)? Yes, gay couples are going to have children. That is a fact. And the state will extend any and all available benefits to those children as it would to any other child. This is not a question of whether or not the State is going to protect children. In fact, it is easier for some of these children to qualify for benefits since the income level required for benefits is less for single-parents than for married parents. The only question is whether or not the government wishes to legalize, normalize, and, inevitably, increase the formation of such families by imparting financial benefits to various couples (or groups of people) in "exchange" for their commitment to stay together and raise the children. This has nothing to do with what is "fair" or who is "better" than whom, or whatever. That is why arguments based on issues of equity or fairness are completely irrelevant to the question of whether or not the state should change the legal definition of marriage and expand marriage benefits.