Yesterday's Washington Post featured a front page article on Paul Katami and Jeff Zarrillo, one of the plaintiff couples in the Perry litigation on same-sex marriage being argued in the Supreme Court on March 26. By their own account, they are a conventional, suburban, two-earner couple. With two French bulldogs, Gracie and Gordy, also prominently featured.
The couple wants children. But only after marriage, they say.
Come again? I think it's worth analyzing this sentiment.
Certainly some heterosexual couples living together choose to get married when they decide to have children. Although the law no longer characterizes children as "illegitimate," social pressure might serve the same function. It's a pressure left over from the days when illegitimacy was not only a stigmatized social status but a legal status carrying grave disabilities. There are people still alive today whose birth certificates were stamped "bastard."
There is no such historical stigma for same-sex couples with children. In fact, by the time we started having children openly in the context of our same-sex relationships (as opposed to those born in different-sex marriages/relationships), the legal disabilities based on the marital status of one's parents had been erased. In notable numbers, we began to adopt children as openly gay couples, and we began using assisted reproduction to have children genetically connected to one partner, in the late 1970's. If we mark 1993 as the beginning of the modern movement for same-sex marriage (the year the Hawaii Supreme Court said it was a possibility, even though an amendment to the Hawaii constitution meant that possibility did not materialize), there were already lots of our children (including my daughter) in school. By the time marriage hit Massachusetts in 2004, children from the first wave of the "gayby boom" were adults.
I cannot recall one meeting, one discussion, one public or private statement, that we should postpone or forego having children because we could not marry. I'm not sure it's an issue that crossed anyone's mind.
What crossed our mind continuously was the legal status of our parent-child relationships. And so for the last almost 30 years a group of creative lawyers (I like to count myself in that group) have been pushing the law to recognize the parentage of both members of a couple raising a child together. We haven't been successful in every state, but through statutes and court rulings in numerous states we have protected the relationships a child has with two mothers or two fathers. Our latest success: Kansas, as I wrote about last month.
California, where Katami and Zarrillo live, has the best set of parentage laws in the country. The couple could adopt a child together. Or if they used surrogacy to have a child, they could obtain a court order before the child's birth naming them both as parents. And if they didn't do that, still the nonbiological father would be the child's legal parent simply by living with the child and holding the child out to the world as his child.
Because all legal benefits and obligations flow from recognition as a child's parent, there is nothing the marriage of Katami and Zarrillo would accomplish that parentage does not. The right to make decisions, review educational records, travel across borders, receive support and public benefits, maintain a connection to both parents if the relationship dissolves, remain in the care of the surviving parent if the other parent dies, etc are all tied to parentage, not marriage.
So why do they think marriage should come first? And if they lose in the Supreme Court does that mean they forego having a child entirely?
Perhaps they believe that heterosexuals should marry before having children and that equality means living by the same rules. When David Blankenhorn switched sides in the marriage equality debate, he said he hoped it would further a conversation of the importance of marriage in the lives of children. But if the Katami/Zarrillo position gains any prominence it will be a tragic example of mission creep.
Same-sex marriage is supposed to be about the equal value of lesbian and gay relationships. We aren't second-class members of society and we shouldn't have a term applied to our relationships that suggests we are. It shouldn't be about buying into the "marriage promotion" agenda I have long decried in this blog. And yet it clearly is for some people. That is, after all, what explains Ted Olson's role. He likes gay couples getting married because marriage is a conservative value. Come to think of it, maybe Katami and Zarrillo's position isn't so hard to explain; Olson picked them to be plaintiffs in this case.