Terence P. Jeffrey | Editor in Chief | Friday, May 16, 2008
Most of the media coverage of the California Supreme Court's decision has focused on the court's declaration that there is a right to same-sex marriage. The ruling invalidated California's Proposition 22, a state ballot initiative that passed with 61 percent of the vote in 2000, and which banned same-sex marriage in the state.
But the California Supreme Court decision goes beyond simply giving same-sex couples the right to call their unions a "marriage." It also strips children of the right not to be artificially conceived or adopted by people other than a mother and a father.
Indeed, the court does not recognize that children have any right whatsoever to a mother and a father.
In the decision, the California court sees children primarily through the eyes of same-sex couples who want to secure custody and control of children. The court makes emphatically clear that it deems this to be a right of same-sex couples that is equal to--and identical to--the right of married mothers and fathers to adopt or conceive and raise their own children.
In making this argument, the court addresses biological parenthood as an accident of nature that can be swept aside by the court in its pursuit of what the court understands to be justice. To explain this vision of justice--and where children fit into this vision--the court equates same-sex couples to infertile heterosexual married couples.
"A person who is physically incapable of bearing children still has the potential to become a parent and raise a child through adoption or through means of assisted reproduction, and the constitutional right to marry ensures the individual the opportunity to raise children in an officially recognized family with the person with whom the individual has chosen to share his or her life," the court said.
Two homosexual men joining together and contracting to have a child artificially conceived, gestated and handed over to their custody, it concludes, is a question of the "liberty and personal autonomy" of the homosexual men, but not of the child who would be so conceived and raised.
"Finally, of course, the ability to have children and raise them with a loved one who can share the joys and challenges of that endeavor is without doubt a most valuable component of one's liberty and personal autonomy," said the court.
"Although persons can have children and raise them outside of marriage," the court said, "the institution of civil marriage affords official governmental sanction and sanctuary to the family unit, granting a parent the ability to afford his or her children the substantial benefits that flow from a stable two-parent family environment, a ready and public means of establishing to others the legal basis of one's parental relationship to one's children and the additional security that comes from the knowledge that his or her parental relationship with a child will be afforded protection by the government against the adverse actions or claims of others."
In constructing its vision for a new type of "family," the court rhetorically worked its way around the biological certainty (in a pre-human-cloning world) that all children have a mother and father (whether they are ever afforded the right to know them or not), by adopting a parental lexicon that features not moms and dads but "opposite-sex couples" and "same-sex couples."
"Extending access to the designation of marriage to same sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children," said the court.
"While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples," said the court, "the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children."
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