Hominid Views

This morning the Washington State supreme court upheld a law passed in 1998 that bans same-sex marriage. The law had been struck down by lower courts. From the Seattle PI:

In a splintered decision, Justice Barbara Madsen wrote that the state’s marriage law was enacted to “promote procreation and to encourage stable families.”

“The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers the State’s legitimate interests in procreation and the well-being of children.”

She wrote that the same-sex couples failed to prove that they had a fundamental right to marry, or that the state’s 1998 Defense of Marriage Act was unconstitutional.

The 5-4 ruling — signed by Chief Justice Gerry Alexander and Justice Charles Johnson — also noted a hardship for same-sex couples, however, and suggested that the legislature “may want to re-examine the impact of the marriage laws on all citizens of this state.”

I haven’t yet read the decision, but based just on the press coverage, one component of this reasoning is illogical.

Well being of children? I wonder if there is any scientific evidence—as in peer reviewed scientific studies, not wingnut white papers—to suggest that children of same-sex couples, whether adopted or biologically related to one of the partners, are any less “healthy” than the biological children of couples?

My guess is that there is no such evidence. Indeed, cross-cultural evidence suggests that healthy children result from a enormous range of family structures developed by humans. The American Anthropological Association points out:

The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies.

The State’s primary purpose of creating the partnership of marriage can hardly be for the “well-being of children.” There is no marriage prerequisite to biologically procreate or even to adopt children. Furthermore, the laws do not prohibit termination of a marriage after procreation has taken place.

The “procreation” argument boils down to this (from the PI):

…lawmakers had a rational reason for limiting marriage to people of the opposite sex: Only those couples are biologically capable of having children, and keeping them together is generally best for those children.

By this logic it would be constitutional for the legislature to ban heterosexual marriage when one or both partners are physiologically incapable of having children (e.g. post-menopausal women). All couples, heterosexual and same-sex, have alternatives routes to parenting when one or both partners are infecund. The only difference between heterosexual and same-sex couples in parenting options is the removal of one option: biological procreation by the couple. And technology may eventually remove this limitation for same-sex couples.

The implication of the “biologically capable” argument is that certain certain classes of heterosexual marriages can be banned. I wonder if someone will develop a joke initiative in response to this ruling—you know, an initiative to ban sterile or post-reproductive individuals from getting married?

Finally, as is hinted to in the PI article, the majority opinion gives the State lawmakers a “hint-hint” about future legislation that could legalize gay marriage or domestic partnerships:

The 5-4 ruling…also noted a hardship for same-sex couples, however, and suggested that the legislature “may want to re-examine the impact of the marriage laws on all citizens of this state.”

I can only hope that the citizens of Washington will eventually come to their senses and get out of the “marriage” business entirely. The state should license domestic partnerships and leave “marriage” to religious organizations.