by Jennifer Roback Morse, Ph.D

This article was originally published at Aolnews.com on August 5, 2010.

The essential public purpose of marriage is to attach mothers and fathers to their children and to one another. Judge Vaughn Walker’s ruling overturning California’s Proposition 8 illustrates that he does not understand this basic point.

He replaces this public purpose with private purposes of adults’ feelings and desires. He approvingly quotes a historian who explains that marriage is “a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.”

Nothing about children. No understanding that marriage connects generations. By the time Judge Walker and his ilk are finished, there will be nothing left of marriage but a government registry of friendships.

There are two big problems with this. First, “marriage” will no longer solve the essential problem of attaching children to their mothers and fathers. Instead of using biology or legal adoption as the determining factor in deciding who counts as a parent, the courts are inventing a new kind of parenthood to resolve these disputes.

“De Facto Parent” is the legal invention that usually involves court-created “tests” to decide whether a person has wiped enough noses and changed enough diapers to count as a “parent in fact.” The natural meaning of “mother” and “father” as biological categories are being replaced by a new kind of parenthood that expands the authority and discretion of the family courts.

This redefinition of parenthood is a natural by-product of the redefinition of marriage. Judge Walker’s decision Wednesday to redefine marriage is a catalyst for this redefinition of parenthood.

But the second big problem with turning marriage into a government registry of friendships is just this: It makes the legal recognition seem unnecessary. And that will lead some people to say, who needs marriage at all? Let’s just get rid of marriage, or get the state out of marriage, or tear down all the social, legal and institutional structures around marriage.

That’s not so bad for people who have no intention of having children and who get married as a status symbol. But it is not so great for people who do have children. And it’s not so great for children themselves. Children have a legitimate interest in knowing their own parents and their biological origins. Every mother needs to know who counts as the father of her children and who has legal responsibility for her children.

It is no good to say that parenthood is whatever the adults say it is, and the government can remain “neutral.” The first time a group of adults disputes about what their parenting “contract” means, the government will be involved, using criteria of its own.

Once again, redefining marriage increases the authority and discretion of the family courts. The natural concept of mother and father as biological realities will be undermined.

Surely the voters have the right to be consulted before making such a major change in public policy. This is just one of the many ways that redefining marriage to be the union of any two persons will affect everyone.

Judge Walker has no right to disparage the voters of California the way he does in this opinion. Let the democratic process play itself out. We have plenty to talk about, without judges telling us we are all bigots unless we agree with them.

 

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