The next pivotal round of the marriage debate is upon us. Judges Daughtrey, Sutton, and Cook of the United States Sixth Circuit Court of Appeals in Cincinnati began listening to oral arguments on Wednesday involving six appeals cases from four states: Michigan, Ohio, Tennessee, and Kentucky.
A full summary of the six cases can be found here.
Jayne Rowse and April DeBoer sued the state of Michigan because the state would not allow them to “jointly” adopt three children. Kentucky couples want out-of-state marriages to be recognized. Ohio couples seek to be recognized as one another’s spouses on death certificates. Tennessee couples want their marriages “recognized on their children’s birth certificates.”
The Michigan and Ohio appeals will be heard first, followed by the Kentucky and Tennessee appeals. It is unclear which way the court will rule: Traditional marriage defenders have lost every case in federal courts since the Supreme Court ruled against a portion of the Defense of Marriage Act. On the other hand, Judges Sutton and Cook were nominees of President George W. Bush.
In each of these scenarios, the lingering question begging to be answered remains key: What is marriage? As one of us has written elsewhere,
“What is marriage?” is the key question that drives all other aspects of this debate. It’s not first whether denying same-sex persons civil marriage violates the equal protection clause of the Constitution; it’s not first whether support for traditional marriage somehow humiliates children in same-sex households. No, the question at stake is more foundational and definitional. What’s at stake in this debate—and what needs to be answered—is whether marriage is malleable or fixed; whether marriage is something subject to electoral opinion, or whether—like water—marriage has a definite composition. Or, to use Anderson, Gergis and George’s terminology, whether marriage is conjugal or subject to revision.
For if marriage is something; that is, whether it is intelligible and has a definite shape to it, then the question of whether same-sex attracted persons can enter into something that they’re not apt to enter, becomes irrelevant. All individuals are free to marry; it’s simply the case that not all adult relationships are pursuing relationships that are marital by nature. And who gets to make this decision is where the debate lies.
However the Court ultimately rules will have profound implications. If the Court rules in favor of the plaintiffs, traditional marriage will continue its streak of losses. If the court rules against the plaintiffs wishing to redefine marriage—conflicting with other federal appeals courts—the Supreme Court will inevitably be forced to give a final verdict. And it seems increasingly likely the Supreme Court will have to do so.
But it is of vital importance to remember that in all of the heated back and forth, the marriage debate is not about adults. Rather, marriage is about children. All of the supposed injuries to the plaintiffs ignore this most foundational question of what marriage actually is, why it matters, and the harms of redefining it.
Whether it is an issue related to adoption or death certificates, policy can and should resolve these disputes without redefining marriage. Why? Because these situations do not require the redefinition of marriage. In the case of same-sex adoption, policy makers—not judges—must consider whether denying children a right to a mother and father is the best message that society should communicate. That some children are raised in same-sex houses has no bearing on the definition of marriage. Children raised in a household, for example, where an uncle helps the widowed father take care of the household doesn’t require that they be married in order for children to thrive. Even still, policy makers must take stock that even in loving same-sex households, the differentiated love of either a mother or father is missing. There is no such thing as “parenting” in the abstract. There is only mothering and fathering. In the interest of children, policy should not deny this reality.
In the case of death certificates, policy solutions could be implemented that would allow individuals to reciprocate the rights and abilities afforded to other caretakers, none of which requires the redefinition of marriage.
Keep this fact front and center: Marriage is not designed to fulfill adult romantic relationships. Rather, marriage is oriented towards, and fulfilled by, the presence of children. Marriage is based on the anthropological fact that men and women are different; the biological fact that reproduction requires both a man and woman; and the social reality that children need both a mom and dad.
The justices hearing these cases will have to consider the merits of different views about marriage’s essence, but ultimately, the question reduces to a matter of authority: Do the people, endowed with their capacity for observation about society’s ends and goals, have the ability to define marriage? Or, rather, does the Constitution require a definition-less understanding of marriage? Do citizens possess the authority to define marriage laws? Or, do judges?
The Court should recognize the legitimate authority for citizens to make reasonable observations about the nature of marriage—actions that citizens in more than 30 states have taken.