In my last post I said little about the conection between marriage and parenting. There is no legal requirement that married couples have children, or that couples raising children be married. Nor do I believe there should be such a requirement, but I do feel that it is almost always better for couples raising children to be married. (Note that this is a separate issue from whether married couples should raise children.) The reason for this is that in a number of ways marriage is better for both the parents and the children. This is best explained in the book The Case for Marriage by Linda Waite and Maggie Gallagher. Maggie has warned against extrapolating to believe those benefits would transfer to same-sex marriages. She correctly points out that the studies used in that book were of oppposite-sex couples. Of course, the studies probably also did not include Jewish couples from Idaho, but we shouldn't say we have no idea whether marriage is good for them. Instead it is helpful to look at how marriage accomplishes what it does. Which of those mechanisms would be in place in a same-sex marriage? Which would not? Maggie notes one difference is there might not be the same cultural support for a same-sex marriage. To me that is all the more reason for family advocates to take the lead in lending more support for SSM. Interracial marriages also at one point lacked broad cultural support. In any case, let us focus on some ways marriage legally benefits the family. Additional cultural support would only improve things further.
(PATERNITY) When a married woman gives birth her spouse is also presumed to be the legal parent of that child. When the spouse is a woman, the same biological basis of this law is not present, but the law itself would still be valuable. Even in states that allow second-parent adoption this would be incredibly important. The other woman would be established as a parent immediately without the expense or delay of adoption. Similarly, in some states only married couples can adopt jointly. Without SSM only one spouse has a legal connection to an adopted child.
(STABILITY/SECURITY) In The Case for Marriage the point is made that much of the benefit of marriage derives from the security in knowing the marriage will last, or at least the knowledge that one would be protected in some ways when the marriage ends (through death or divorce). This security allows for a beneficial flexibility in the division of labor. One spouse can choose to sacrifice some opportunities for career advancement in order to help care for the child, secure that he/she will still be taken care of. Likewise marriage makes the relationship more stable. Much of this comes from cultural support, but some comes from the law as well. Even with no-fault divorce, a married person must go through legal proceedings to end the marriage. Marriage also encourages the intermingling of finances that makes it more difficult to just walk away. The laws of adultery also support the stability of marriage. Finally, the legal support that helps one care for one's spouse in times of need promotes stability. When times are tough, it is sometimes difficult to follow through on one's commitments. The law both gives legal force to these obligations, and help in fulfilling them (the Family Medical Leave Act is just one example).
(DEATH AND DIVORCE) All marriages end, whether through death or divorce. This is particularly difficult when a child remains to be raised. While the harmful effects of divorce have been documented, the comparison is made to remaining married. I'm not sure if any studies have compared the effects of divorce as compared to unmarried couples separating without a legal process. At least theoretically, a judge in a divorce will consider the children's interests in allocating assets, awarding support, and determining custody. An unmarried couple separating has no such process. It is tragic when a person is left widowed while raising a child. Again cultural support helps a person in this difficult situation, but the law helps as well in matters of social security, inheritance and dowager rights, tax liabilities, wrongful death statutes, and more.
This is just a glimpse of how the laws of marriage could benefit children in same-sex families. With more cultural support we could help them even further. Even if one felt a same-sex couple should not be raising children to begin with, it seems it would be better for them to do so with the protections of marriage than without them. I would be shocked to discover that children do better when their parents are married, unless those parents are of the same-sex in which case they do better when their parents cohabit.
Scientific studies by the Family Research Council have shown that children of same sex couples do _really_ well when their parents live in bathhouses or, even better yet, are in prison for violating "sodomy" laws.
Posted by: Steven Malcolm Anderson | January 05, 2004 at 07:06 PM
The hardest part of going through divorce is child custody. Perhaps separating is indeed better when done legally because the interest of the child is not just cared for by parental guilt and responsibility but also by the law. Here in Ontario, family lawyers always see to it that whatever happens to the child, it is agreed upon by both parties. It's their aspiration that no child is left unsupported in Ontario. Family law has come a long way, so it's safe to say that it has adapted to the effects of divorce.
Posted by: Account Deleted | February 10, 2011 at 04:57 AM