Ruth Institute Blog

Prepared remarks for Minnesota House of Representatives, hearings on the marriage amendment Dr Jennifer Roback Morse, founder and president of the Ruth Institute, a project of the National Organization for Marriage    May 2, 2011, St. Paul, Minnesota

I am Dr. Jennifer Roback Morse, founder and president of the Ruth Institute, a project of the National Organization for Marriage.  My doctorate is in economics, from the University of Rochester, in NY. I have taught at Yale and George Mason Universities. I have had fellowships with the University of Chicago, Cornell Law School, and the Hoover Institution at Stanford.  I have written two books on the social purpose and significance of marriage. I am the mother of an adopted child and a birth child. My husband and I were foster parents in San Diego County for three years.

I urge you to allow the citizens of MN the opportunity to vote on the proposed marriage amendment.  Same sex marriage redefines marriage. Redefining marriage redefines parenthood.  Redefining marriage affects the balance of power between the state and civil society. The citizens of MN have the right to make up their own minds about these important issues.

The essential public purpose of marriage is to attach mothers and fathers to their children and to one another.  To see the importance of this purpose, we must take the perspective of the child: What is owed to the child? Unlike adults, the child does not need autonomy or independence. The child is entitled to a relationship with and care from both of the people who brought him into being. Therefore, the child has a legitimate interest in the stability of his parents’ union.  But no child can defend these entitlements himself. Nor is it adequate to make restitution after these rights have been violated. The child’s rights to care and relationship must be supported pro-actively, before harm is done, for those rights to be protected at all.

Marriage is adult society’s institutional structure for protecting the legitimate interests of children. Without this public purpose, we would not need marriage as a distinct social institution.

We often hear the objection that some marriages don’t have children. This is perfectly true. However, every child has parents. Depriving a child of relationships with his or her parents is an injustice to the child, and should not be done without some compelling or unavoidable reason. The objection that some marriages don’t have children stands the rationale for marriage on its head. It views marriage strictly from the adult’s perspective, instead of from the child’s perspective.

Same sex couples and opposite sex couples are obviously different with respect to this essential public purpose of marriage.  And treating different things differently is not discrimination. That is why, in the few cases where courts have found opposite sex marriage to be unlawful discrimination, they have had to come up with purposes for  marriage that have nothing to do with procreation or attaching children to parents.

For instance, Judge Vaughn Walker, who overturned Proposition 8 defined marriage this way: “Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.”

Under this definition, marriage doesn’t have anything at all to do with children, permanence, sexual exclusivity or even sex itself.  Some college roommates could call themselves married under this definition. The essential public purpose of marriage has vanished, and has been replaced with inessential private purposes. Instead of being a bedrock social institution, marriage becomes nothing but a government registry of friendships, a pointless legal convention that frankly doesn’t deserve any government benefits or recognition at all.

But children still need to be attached to mothers and fathers.

We sometimes hear claims that studies show that same sex couples make fine parents. The most recently reported study was in the June 7, 2010 issue of the journal Pediatrics.[1] This study was based upon the self-reported results of an unrepresentative sample of lesbian mothers of 78 teenagers, hardly a sufficient data set for drawing sweeping conclusions. Yet the headlines went around the world, “Lesbians make the best parents.”  And a 2010 survey of 80 studies admitted that there is very little evidence about male couples as parents.[2] We simply do not have enough data to draw such strong conclusions as, “lesbians make the best parents.”

On the other side of the equation, we have mountains of data showing that children do need both their mothers and their fathers,^[3] and that fathers make distinct contributions to the well-being of children.^[4] Mothers and fathers are not interchangeable. But redefining marriage will require us to say that they are. In fact, courts are saying silly things like, “the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else.”^[5] This statement by the Iowa Supreme Court in Varnum v Brien is simply false as a general statement.

But the impact of same sex parents on their own children is not the main problem that redefining marriage presents for children. As of 2005, an estimated 270,313 of the U.S.’s children are living in households headed by same-sex couples,[6] less than 4 tenths of one percent of the total children in the US. [7] The more significant problem is how redefining marriage affects other aspects of the legal and social system.

Same sex marriage redefines parenthood, as a side effect of redefining marriage.  Up until now, marriage has made legal parenthood track biological parenthood, with adoption for exceptional situations.  The legal presumption of paternity means that children born to a married woman are presumed to be the children of her husband.  With this legal rule, and the social practice of sexual exclusivity, marriage attaches children to their biological parents.

Same sex couples of course, do not procreate together. What is being called “Marriage Equality” requires a dubious move from “presumption of paternity” to the gender neutral “presumption of parentage.”  This sleight of hand transforms the legal understanding of parenthood.  The same sex partner of a biological parent is never the other biological parent. Rather than attaching children to their biological parents, same sex marriage is the vehicle that separates children from a parent.

But biology will reassert itself.  And in fact, in some cases, biology already is reasserting itself. Some women who have children with female partners find that sharing the care of their children with another woman is not as easy as they thought it would be, and really isn’t comparable with sharing the care with the child’s father. Some men who agree to be sperm donors as “friends” find that they want more of a relationship with their own children than they had anticipated.[8] And some children are having feelings about their absent parents, uncomfortable questions about their origins, and complex emotions about being partially purchased.[9]

Advocates of so called marriage equality typically respond, “That’s just biology,” as if biology were nothing. They are asking people to set aside the natural attachment of parents to their own children, the natural difficulties of treating another person’s child as if they were your own, the natural desires of children to know who they are and where they came from.  Suppressing all these feelings in all these people will not be possible indefinitely.

In addition to all these unanticipated feelings, redefining marriage will have far-reaching legal consequences. Courts are awarding parenting rights to individuals who neither biological parents nor adoptive parents.  Let us call these people “non-parents.”  The courts and now even some legislatures, are giving parental rights to non-parents. Perfectly fit parents are having their rights diminished because they once had a sexual relationship with someone.[10] To do this, the state must establish multi-part tests for determining whether a person warrants the status of “de facto parent.”  The court ends up scrutinizing the minutiae of family life to make a determination about whether a person meets the criteria for being a de facto parent.

Let us be clear: the alternative to the biological principle for determining parentage is the principle that the government decides who is a parent. Instead of simply recording parentage, the state will determine parentage, not in exceptional cases, but routinely. This is what “getting the state out of the marriage business” will eventually come to mean.

In short, redefining marriage from the union of a man and a woman to the union of any two persons jettisons three foundational principles: first, the principle that children are entitled to a relationship with both parents, second, the biological principle for determining parentage, and third, the principle that the state recognizes parentage, but does not assign it.

These are not insignificant changes. Please note that these concerns do not assert that anyone is unworthy of marriage, do not make anyone a “second class citizen,” and do not disparage anyone.  Changing the law of marriage changes the law for everyone, and puts incentives into place that may affect the behavior of everyone.  Redefining marriage is a radical social experiment.

Previous generations of social experimenters have caused unimaginable misery for millions of people.  Particular people advocated the policies that led to today’s 50% divorce rate and 40% out of wedlock childbearing rate. None of these people has ever been held accountable.

The people of Minnesota are sensible mature people, who want to be accountable for what happens in their state.  The people of Minnesota deserve a chance to vote.  Redefining marriage will have far-reaching consequences that ought to be fully aired.  Putting this amendment on the ballot will allow that discussion to take place.  Let the people vote.