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.
That rule can not work for a same sex couple. There is always a third party in the background, as an additional parent to the child. There can not be a presumption of “paternity” in a lesbian custody case. The genetic father is typically, but certainly not always, an anonymous sperm donor. In one of the recent disputed lesbian custody cases, Kristine H v Lisa R. the biological mother tried to prevent her estranged partner from having contact with the child. In another California case, Elisa B. v Emily B., the biological mother tried to force her estranged partner to pay child support. The court’s rulings amount to having the non-biological mother stand-in for the father. The biological mother must allow her child to have regular visits with a person who has no genetic relationship to him or her. The biological mother is entitled to receive child support payments from the estranged partner, who again, has no genetic connection with the child.
Sometimes gay marriage advocates attempt to circumvent this problem by making subtle restatement of the ancient rule. They reword it by saying, “a child born during the life of a union is presumed to be the child of both partners.” This simply won’t do. There can not be a presumption of parenthood in a same sex couple. In fact, there is a presumption of non-parenthood. A same sex couple can not have a child unless somebody gives them one. Every child in the household must have at least half of their genetic material donated by a third party.
The law makes this possible by cutting the biological father out of the loop. The law makes sperm donors “legal strangers” to the children conceived with their sperm. (I doubt that men would donate their sperm if they thought the woman might come after them for child support, or that their child might someday come after them for a relationship.) But why should the law provide this barrier between children and their fathers? What social good is served by allowing women to make a plan that permanently deprives their child of a relationship with his or her father?
Marriage routinely and organically connects children to the people most likely to have an interest in them. Marriage evolved to meet the needs of opposite sex couples, who naturally and organically, make babies. Changing marriage to accommodate same sex couples will necessarily change the way we assign children to parents. Instead of a simple, easily applied rule of parentage, we will have to create a set of institutions that must operate on a case by case basis. The law will have to evolve, in ways we may not be able to foresee perfectly.
In the 1970's, California led the way in the no-fault revolution in divorce laws. Advocates of this unprecedented change to family law assured the public that no harm would be done: children would be better off living with divorced happy parents than with quarreling married parents. We now have plenty of evidence to disprove that rosy promise.
Now, the California state legislature is trying to foist an even more radical social experiment on the people of California. We don’t need any more experiments with family forms. Governor Schwarzenegger is right to veto the same sex marriage bill.