Gay Marriage, Social Experimentation, and Legal Precedent

I have generally avoided weighing in on the gay marriage debate. Like most Americans, I have acquaintances, colleagues and close friends who self-identify as homosexual. Many have families. I am concerned that there is insufficient scientific participation in the national conversation about the causes and implications of homosexuality and homosexual behavior. (Indeed, it would appear that scientific or scholarly study is not permitted unless it produces conclusions with which the cognoscenti agree). Apparently, I am not alone.

To tamper with societal structures as fundamental as marriage and family without sufficient scientific study is foolhardy. But this is not the first time. And yet we appear not to have learned much from our prior experience.

In a widely cited article in the Washington Post last year, popular author Jonathan Rauch addressed what he characterized as "five myths about gay marriage." In the paragraph in which he endeavors to debunk the "myth" that "same-sex marriage hurts children," he states the following:

"The great enemy of the traditional family in the United States today is not the desire of gay couples to get married; it is the failure of heterosexual couples to get married and stay married. Over the past 10 years or so, while the country was busy debating same-sex marriage, the number of cohabiting couples doubled. Because of cohabitation, divorce and single parenthood, a third of children today do not live with two married parents - an ominous trend that began decades before same-sex marriage came along."

This particular observation is nothing short of astonishing.

Divorce, cohabitation and out-of-wedlock births had always taken place. But until the 1960s and 1970s, they had been discouraged and frowned upon. The liberalization of divorce laws (or what came to be called "no-fault divorce"), the widespread acceptance of premarital sexual relationships, "living together" before or instead of marriage, and single parenthood all became part of mainstream American society at approximately the same time. These societal experiments were advanced by well-meaning advocates using arguments about "individual freedom," "equality," "progress," and eliminating "stigma." And while there were those who warned that the results would be catastrophic and far-reaching, those voices were ignored, mocked, or dismissed as "out of touch."

Five decades later, we now see the destruction that this "liberalization" of American sexual mores has wrought. The divorce rate skyrocketed past 50%. The illegitimacy rate followed: the number of children born to white single mothers has climbed from well under 10% (where it had been for most of the country's history) to nearly 30%. 52% of Hispanic children are born outside of marriage. And the African-American community has been particularly devastated; over 70% of black children are born to single mothers, a disproportionate number of whom are teenagers. In total, almost 41% of all children are now born outside of wedlock in the United States.

We are now painfully aware of the negative impact divorce has on children. Similarly, studies have documented the increased risks of poverty, abuse, reduced academic achievement, and likelihood of criminal conduct for children born to single mothers. Studies of cohabiting couples also demonstrate that, far from improving the stability of subsequent marriage, living together actually contributes to the likelihood of divorce. Fifty years ago, sexually transmitted diseases were the province of sex workers and the men who frequented them; STDs among young people were almost unheard of. Now, 1 in 4 young people has a sexually transmitted disease. And the incidence is even higher if one looks only at Hispanic or black American youth.

In short, the experiments of the '60s and '70s have been an unmitigated disaster for children.

It is ironic, therefore, to see "cohabitation," "divorce," and "single parenthood" described by a gay marriage activist as "ominous trends," since it was the removal of societal disapproval of these behaviors that threw open the door for the societal consequences that Rauch now decries.

Those of us with gay friends and family members want them to be happy and fulfilled, and would certainly prefer them in committed monogamous relationships as opposed to loneliness or a life of random hookups. Even so, one would think that precedent strongly recommends being more circumspect about experimentation with societal mores. We are being asked to believe that redefining marriage to include homosexual relationships will have no negative results. History suggests otherwise.

As blithely, Mr. Rauch and many other advocates dismiss the legal precedent being set by the current arguments in favor of gay marriage.

As much as advocates of gay marriage would love to confine the conversation to public support for two gay men or two gay women being able to marry, that is not the way the law works. That is not the way the legal arguments in support of gay marriage have been framed. And that will not be the result – or the limit – of the precedent that is being set.

Advocates for gay marriage have been arguing – and winning – in court, saying that marriage is a "fundamental right" and that therefore, state laws which limit marriage to one man and one woman cannot just have a "rational basis" – they must bear up under a more rigorous constitutional standard: "strict scrutiny."

Under the "strict scrutiny" standard, states have argued that their marriage laws have as their purpose the protection of families and children, and have cited to studies demonstrating that children do better when in two-parent homes with their biological mother and father.

But these arguments do not always persuade the judges. Hollingsworth v. Perry, the case in which California plaintiffs successfully challenged Proposition 8 (and which the U.S. Supreme Court agreed to hear on appeal) is illustrative. In Hollingsworth, the court stated that Proposition 8 was not even "rational" under the lesser constitutional test. The Hollingsworth court disregarded the evidence submitted in support of traditional marriage, concluding that the only possible basis for limiting marriage to heterosexuals was an intention to discriminate against homosexuals and a moral argument that "homosexual relationships are inferior to heterosexual ones" – both impermissible, in the court's view. In addition, the case makes reference to the parties' freedom to love whom they choose, and to make a home however they wish.

Hollingsworth is by no means the last word on the subject – at least until the Supreme Court speaks (and perhaps even afterwards). But the precedential effect of this reasoning is quite clear, notwithstanding what the apologists might say. Polygamists and polyamorists are watching the debate with interest (visits to advocacy websites make this clear), and are prepared to make the same arguments: if a state's law limiting marriage to male and female is not supportable under "strict scrutiny" nor even "rational," then how can a law that limits a marriage to TWO people be supportable? If children do better in a loving environment, if there is a liberty interest inherent in one's decision about whom to marry and how to create a family -- then why not more than two "parents"? How can the state possibly dictate that only two people can do so?

It is worth further note that some groups advocating for polygamy will also be arguing on First Amendment grounds: freedom of religion. There are some sects of Mormons who practice polygamy without state sanction (or church approval). Some Islamists also practice polygamy. How are laws limiting a marriage to two people going to withstand these challenges?

The short answer is, ultimately, they will not. It will only be a matter of time, and of making the right argument to the right judge with a supportive ear and a pliable view of the Constitution.

Nor will these be the only challenges to state marriage laws. Unmoored from traditional western definitions of marriage, laws about consanguinity will be challenged, as will laws about age of consent. The foundation has already been laid. Why should a girl be able to get an abortion at 13 with a judicial bypass, and not be able to get married the same way? (It is not hard to anticipate the way the argument will be phrased: "We let girls as young as 13 decide to make a decision which takes a human life; why would we not allow them – with adult supervision in the form of an appearance before a judge or magistrate – to make a decision that is life-affirming?")
This is neither fear-mongering nor hyperbolic "slippery slope" argument. It is a description of the effect of legal precedent.

Even those who continue to oppose the redefinition of marriage are concluding that "the battle is over." Perhaps. But as we have seen, the intentions behind societal experimentation do not mask the consequences. Reality is a harsh teacher. The grownups experiment and the children pay the price. And so our society will reap the consequences, whatever they are.

Laura Hollis is an Associate Professional Specialist and Concurrent Associate Professor of Law at the University of Notre Dame, where she teaches entrepreneurship and business law. She is the author of the forthcoming publication, "Start Up, Screw Up, Scale Up: What Government Can Learn From the Best Entrepreneurs," © 2014. Her opinions are her own, and do not reflect the position of the university. Follow her on Twitter: @LauraHollis61.

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