When Governor Arnold Schwarzenegger vetoed the same sex marriage bill, AB849, the reasons he gave were not the strongest ones he could have offered. He said redefining marriage is too important to be done by the legislature, especially since the people of California overwhelmingly supported a referendum defining marriage as an opposite sex institution. But the Governor need not hide behind the popular referendum. There are substantial reasons to veto this bill, apart from the obvious fact that it is a poke in the eye to the electorate.
The bill changed marriage from “a civil contract between a man and a woman” to “a civil contract between two persons.” This is not an innocent semantic adjustment. This little change in wording changes marriage from the pre-eminent gender-based social institution to something completely gender-neutral. And it wrongly implies that marriage is nothing but a contract. If that were true, all the issues surrounding marriage could be adjudicated using ordinary contract law. We would not need a whole separate law of marriage and divorce, administered by a separate family court. The fact is, marriage has unique features that are not fully covered by contract.
Dividing the responsibility for the care of minor children is not a suitable subject for contracts. We can not treat children like property. They are persons with rights of their own, not objects to which other people have rights. Family law courts have developed a whole series of methods of taking the interests of minor children into account.
Marriage has unique social purposes that can not easily be replaced by a series of contracts. Marriage binds couples to each other. But marriage also binds children to parents. Marriage assigns children to their biological parents, and assigns to those parents the rights and responsibilities for the care of the child. These purposes apply to opposite sex couples in a way that they simply cannot apply to same sex couples.
Family law courts are already struggling with assigning parental rights and responsibilities in dissolving lesbian partnerships. There is a very old paternity rule, dating back to the English common law. A woman’s husband is presumed to be the father of any child born to her during the course of their marriage. This rule binds the children to those particular adults as their parents. That man has both rights and responsibilities for those children, even if he is not in fact their biological father.