Weak Ruling on Marriage Reflects Even Weaker Understanding of Sustainable Marriage Public Policy

           Marriage is important to the Virginia domestic relations code.  It is also important to a strong Virginia.  Thursday night’s after-hours decision in the Eastern District of Virginia on the constitutionality of Virginia’s State Marriage Amendment reflects weak jurisprudence that does not support sustainable public policy.

  Virginians defined marriage by state referendum in 2006 with a law that is now contained in Article 1, Section 15 A of the Virginia Constitution.  Virginia is one of thirty states that have moved to strengthen marriage in this manner.   The recent Supreme Court of the United States opinion in U.S. v. Windsor, while striking the federal definition of marriage, expressly held that states have the right to regulate family law.  

 The Bostic decision last night stated that the federal constitution required its ruling to expand marriage without an understanding of the court's own errant legal reasoning.  A Virginia Delegate noted this mistake right away, as the Virginian-Pilot reported.  “The ruling attributed the ‘all men created equal’ credo to the U.S. Constitution when, in fact, that language is in the Declaration of Independence,” noting that the judge’s “inability to tell the difference between the two foundational texts illustrates incompetence.”  Read the full article here. The decision also illustrates a lack of understanding of family law public policy.

 Marriage laws carry great significance for the future of the Commonwealth of Virginia.  According to a 2011 Pew Research Center Study, in 1976 72% of adults were married, while that number dramatically dropped to 51% in 2010.  In the midst of a collapsing marriage culture where marriage is clearly declining in popularity, the traditional power of states to define domestic relations and strengthen marriage culture is undermined and injured by recent rulings that lack solid legal reasoning supportive of state family law.   

              Because family law extends into almost every other area of law, rulings which expand and dilute marriage will further weaken the substance of family law policy. Virginia law on marriage supports the ability of husbands and wives to contribute to the common good through the creation and perpetuation of the family, while simultaneously not working to prohibit same-sex couples from entering into ordinary contractual relationships. 

             Virginia’s law on marriage also recognizes that changing marriage creates inequality, as redefining marriage institutionalizes less diverse structures, producing unequal opportunities for children.  Strengthening marriage, however, champions children's interests, as fathers and mothers together provide the best structure for delivering children into adulthood.  In fact, the Virginia Supreme Court of L.F. v. Breit v. Mason, Record Nos. 120158, 120159, Jan. 10, 2013 determined that a child has a protected liberty interest in knowing and having a relationship with both his father and his mother.  These goals promote and achieve the common good.

 The “right to marry” was first found to be fundamentally protected by the United States Constitution in Loving v. Virginia. The “right to marry a person of the same sex,” however, has not been afforded constitutional protection, even with Windsor and Perry.  

 The political pressure, however, to which recent decisions to expand and dilute marriage have succumbed, is formidable.  The impact of the rhetoric used, rather than solid legal rationale based on the rule of law, now appears to be driving marriage regulation. This is most dangerous for sustainable public policy.

 Cases that promote marriage expansion present two alternate views of marriage - the “conjugal” view and the “consent-based” or revised view of marriage.  Under the conjugal view, the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing. Indeed, the link between marriage and procreation is a hallmark of the conjugal view, inextricably linking the relationship to procreation normatively, a view which fundamentally represents society’s interest in the ordering of adult relationships for the benefit of children and therefore society as a whole. 

 Governments support married men and women as a public structure for their unique service of creating and raising children – the future public – as necessary to the common good.  This view holds romance as the spark that begins lifetime commitment and works to perpetuate society.  Consequently children and family are a prominent concern in conjugal marriage-based family law and policy.

 The consent-based or revisionist view of marriage defines marriage as the solemnization of mutual commitment – marked by strong emotional attachment and sexual attraction – between two persons. Since procreation is not central to this view of marriage, the sex of partners is irrelevant to the definition.  This notion of marriage centers on adult autonomy and commitment.  In this view marriage is an emotional bond where partners seek emotional fulfillment and remain as long as they find that fulfillment.  This view of marriage is ultimately subject to one’s own desires.  It holds romance as perpetuating the self-focused version of heterosexual marriage that has led to its decline, something that family law divorce lawyers generally understand well. The Supreme Court explicitly contrasted the conjugal view with the “new insight” that allows “same-sex marriage . . . for couples who wish to define themselves by their commitment to each other.” (U.S. v. Windsor).  These two views of marriage are in direct contrast – one focusing on children, the other focusing on adults.

 States like Virginia that have fostered conjugal marriage are feeling the effects of political pressures, rather than being encouraged to make sustainable public policy.  Until the ruling of February 13, 2014, state public policy indicated that Virginia law remained deeply committed to children and to married men and women.  

 If Bostic stands, it represents a severe ideological shift in family law.  The changes to family law coming as a result of more widespread recognition of same-sex marriages are dramatically changing what family law is in terms of sustainable state policy.  Changes in marriage bring changes to adoption law, and to parentage, by officially denying a child’s need for both a mother and a father.  It creates unequal opportunities for children adopted into homes lacking mothers or fathers.   It affects kinship and family ties.  Revising marriage into a single-sex option promotes families that would intentionally deprive children of the diversity of a man and a woman, creating inequality for children.  Conjugal marriage conversely guarantees diversity and equality to children.  George Mason Law Professor Helen Alvaré contends in her article published by Stanford’s Law and Policy Review entitled The Turn Toward the Self in the Law of Marriage & Family: Same-Sex Marriage & Its Predecessors, that among other concerns over marriage revision, artificial reproductive technology (ART) will be greatly relied upon to build families for same-sex parents.  Children will live with the effects of those decisions.  (See also Why I Need to Find My Father, W. Daily Press (Eng.), Jan. 23, 2004, at 8 (citing “feelings of revulsion at the clinical method by which we were produced; a sense of loss and grief for deliberately severed relationships with unknown biological kinfolk; a fear of accidental incest; anger and frustration at the lack of respect shown for our missing genetic origins....”).  As same-sex marriages become more prevalent, demand for ART will naturally rise, which will bring with it a host of parentage and custody implications.  The most profound effects of marriage revision may lie in the impact upon family law effectuated by the acceptance of the underlying ideology. This ideological shift centers on the conception of the meaning of marriage.  Both revisionists and conjugal marriage supporters value love, commitment, and rights as well as procreation in marriage; these values are not mutually exclusive. Thus, it is not a matter of substituting these aspects completely, but rather of substituting them as the primary basis and justification for civil marriage. Since family law policies reflect the ideologies they are built upon, changes to marriage toward an adult-centered approach will undermine sustainable family public policy.  

            Other implications arise from the Bostic ruling.  Requirements for entry into marriage (such as of minimum age and unrelated by consanguinity or affinity) are no longer unshakable.   Moral repulsion of incest is not a defense to marriage revision; normalization of sex with children is advanced by consent-based language.  Other elements of the definition of marriage are today more vulnerable because of Bostic and rulings like it.

             Conjugal marriage carries an implicit child-centered approach; adults sacrificing their own autonomy for their children’s best interests.   Adult-centered approaches, such as the revisionist or consent-based understanding of marriage view marriage as more of a self-seeking than a self-giving institution, and thus steer marriage and families in a direction precisely opposite that which is needed to reconnect these institutions to children and to the larger society.  Practically, the effects of exchanging a best interest of the child mindset for an adults-oriented approach would ripple through parentage determinations, child custody determinations, and child support, areas of family law that have traditionally been dominated by the best interest of the child standard. Professor Alvaré makes this point clearly:

            [M]arriage is not a tool for adults to feel better about being different, but an important element to express state interests in the well-being of children. Parents' interests are not unimportant; marital happiness is a terribly important component of adult happiness. Yet in the eyes and on the scales of the law, the state is more vigorously protective of children's interests and looks to strong marital unions as the way of assuring these. This is why the state can interfere with parents in cases of child abuse, why divorcing parties may never have the last word about child support or custody, why adoption procedures attend so much more closely to the interests of the child than even the deepest longings of would-be parents, and why recent federal and state lawmaking efforts about marriage, divorce, and welfare all have children as their rallying cry. (Helen M. Alvaré, The Turn Toward the Self in the Law of Marriage & Family: Same-Sex Marriage & Its Predecessors, 16 Stan. L. & Pol'y Rev. 135, 187 (2005)).

             The ideological shift from conjugal marriage to an expanded view of marriage to protect same-sex families will change family law, damaging sustainable public policy.  In 2006 Virginia formalized its determination that conjugal marriage was the best family policy for the state, largely because it transforms self-centered, single adults into connected mothers and fathers who together overcome obstacles in life to build a natural family across multiple generations.