I was listening to the oral arguments in Obergefell v. Hodges yesterday, paying particular attention to the arguments on the "other side". Most of them revolved around "the kids" in some way, and how they would be harmed by legalizing same sex marriage. Now, there was a day when you could openly claim, in a Federal court, that children would fare worse in a gay/lesbian household. But that ship seems to have sailed a handful of years ago. So yesterday, even the lawyers for Michigan didn't have the balls to make such an assertion (my emphasis):
[Michigan Solicitor General] MR. BURSCH: Because if you're changing the meaning of marriage from one where it's based on that biological bond to one where it's based on emotional commitment, then adults could think, rightly, that this relationship is more about adults and not about the kids. Not the case with the Plaintiffs in this case. We all agree that they are bonded to their kids and have their best interest at heart. But when we're talking about, Justice Kennedy, over decades, when laws change, when societal views on marriage change, there are consequences to that.
Bursch was at pains to stress that these same-sex parents were great. In fact, it wasn't even same-sex parenting that Michigan was opposed to really, but rather the long term consequences of changing the "societal views on marriage". The kind that would make marriage "more about adults and not about the kids". Frankly if that is their concern, maybe they firstly need to tackle the scourge of romantic comedies Hollywood churns out each year. Those movies have been telling the world (in glorious soft focus) for decades that love is the key to marriage. Or maybe they need to take an axe to The Bachelor, The Bachelorette and Say Yes to the Dress (hold on, I might be all for that). It seems to me all that stuff is a lot more focused on the adults in the relationship. There's another diary on how ridiculous and offensive the repeated references to "biological bonds" were so I'll skip that sorry embarrassment masquerading as an argument. It's the other argument that struck me. You know, Mr. Bursch's earth-shaking epiphany that actions have "consequences". That somehow, an emphasis on a loving and caring relationship between the adults in a family will be detrimental to children in the long run. The implication is that Mr. Bursch doesn't believe loving families are really the ideal environment in which to raise children. Some other kind of family structure must be, and thankfully RBG was there to help tease that out for us:
JUSTICE GINSBURG: We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court's decision in 1982 when Louisiana's Head and Master Rule was struck down. And no State was allowed to have such a such a marriage anymore. Would that be a choice that a State should be allowed to have? MR. BURSCH: No. JUSTICE GINSBURG: To cling to marriage the way it once was? MR. BURSCH: No. Absolutely not, because there the State didn't have a legitimate interest in making anyone subservient to anyone else. But here the State's entire interest springs out of the fact that we want to forever link children with their biological mom and dad when that's possible.
But of course that second to last assertion is not correct. Before it meant opposition to same-sex marriage, "traditional family-values" meant opposition to equality within opposite sex-marriage, which is why RBG brought up Kirchberg v. Feenstra (prior to that, it meant something else). In that not-so-distant past, "conservatives" railed against the demand that wives enjoy equality in marriage, claiming it would destroy the family and society in general (their counterparts around the world still say this). That was why speakers attacked the Clintons for not having "traditional family values" at the Republican convention in 1992. Current debates about family life within conservative circles (even seemingly innocuous ones) still say wives should "submit" to their husbands. So no, it's not about the children, it's about preserving the power of a rigid patriarchy. Below the fold: How this is related to Divorce, and Scalia's views on same-sex parenting…
What's Divorce got to do with it? That conservatives are really trying to defend patriarchy would not come as a surprise to the author of this article in the Washington Post: Conservatives aren’t just fighting same-sex marriage. They’re also trying to stop divorce.:
Social conservatives regularly advocate a return to a more traditional system of divorce — namely that it be extraordinarily difficult to get. For example, the only way an Alabamian could get a divorce under the state’s original 1819 constitution: "No decree for such divorce shall have effect until the same shall be sanctioned by two thirds of both Houses of the General Assembly." Even a battered wife — who, of course, couldn’t vote — would have to petition her all-male state legislature and get supermajority approval before being freed from matrimony.
That view is based on the mistaken assumption that forcing unhappy adults to stay under one roof and let their kids be subject to all that disfunction is somehow better for them. Why don't I let Stephanie Coontz (my favorite historian of family studies) debunk that one for you:
Divorce rates have been falling for 30 years, but the freedom to leave a dysfunctional marriage can be a lifesaver for women, who initiate two-thirds of divorces. Economists Betsey Stevenson and Justin Wolfers found that every state that adopted no-fault divorce, beginning with California in 1970, experienced an 8 to 13 percent decline in wives' suicide rates and a 30 percent decline in domestic violence in the next five years. On average, children of divorce exhibit more behavioral problems and do more poorly in school than children of intact marriages. But in many cases, the problems blamed on divorce can be seen in children many years before their parents split up and are actually a result of the dysfunctional family relations that eventually led to divorce. One large survey found that experiencing their parents' divorce lowered the well-being of 55 to 60 percent of children but improved the well-being of 40 to 45 percent. And when demographer Allen Li controlled for problematic characteristics in children that preexisted their parents' separation, he found no average negative impact of divorce itself. Children of divorced parents are themselves more likely to divorce. But a recent study using data from the National Survey of Families and Households found that people who grew up in houses where their parents fought frequently were more likely to divorce if their parents remained together.
PS. To be fair to the faithful, there are many who try to reach for a more thoughtful, gentler interpretation of this concept of "submission" which gives it a conflict resolution feel. But that's not what the holy warriors think. Oh Scalia! The attorneys for the states opposing same-sex marriage didn't think it was helpful to suggest same-sex parents were in any way worse than opposite-sex parents. But that did not stop Scalia from going there:
[US Solicitor General] VERRILLI: But there's a quite significant problem with that rationale, and it's this: Right now, today, hundreds of thousands of children are being raised in samesex households. That number is only going to grow. All of the evidence so far shows you that there isn't a problem, and what the and the States' argument really is quite ironic in this respect that it's going to deny marriage, the State JUSTICE SCALIA: That that's quite a statement. All of the evidence shows there is no problem. SOLICITOR GENERAL VERRILLI: Well, I JUSTICE SCALIA: All of the evidence shows there's not a problem. SOLICITOR GENERAL VERRILLI: I I think all of the leading organizations that have filed briefs have said to you that there is a consensus in that, and JUSTICE SCALIA: Well, I think some of the some of the briefs contradicted that.
Now, if it had been me I would have said something like "well any study about hetrosexual parents would also demonstrate a variety of problems with their parenting". I'm glad the solicitor general kept his sass in check. It does not help to piss off one of the nine. Consequences Just wanted to throw in Bursch's rambling argument for Michigan's opposition to same-sex marriage...
MR. BURSCH: Because if you change the societal meaning of what marriage is - and society has already started to move away from what we always understood marriage to be, that linkage between kids and their biological mom and dad. The more that link is separated, the more likely it is that when you've got an opposite sex couple, that link will not be maintained, because it's more adult-centric, and it's less child-centric. You've got more kids being raised without their biological mom and dad. You have more kids being raised without both parents, you know, typically, without a father, though that's not always the case. And it's not unreasonable for the people in thinking about the possible consequences of changing a definition, which has existed, as Justice Kennedy said, for millennia, might have real consequences. To say otherwise is to say that it's irrational for a person to think that changing an idea about something will have no effect about - on how people think about that idea.
Finally, to be fair, there is some truth to the conservative accusation that some "radical feminists" completely opposed marriage as an irredeemably unequal structure, but that has mostly changed. Heck, even Gloria Steinem get married in the end.
— Cross-posted from NotMeUs.org | @subirgrewal