The four dissenters in Obergefell v. Hodges lucidly expressed the profound offense against constitutional law and representative democracy the ruling represents. In short, five lawyers, accountable to no one, chose to legislate on a profoundly consequential matter that the people were just beginning to address through democratic means. As Chief Justice Roberts wrote: "Who do we think we are?" If justices cannot resist the urge to legislate, let's drop the pretense that constitutional law is guided by neutral principles and at least give the people the option to vote justices in (and out).
That the court has struck a blow for gay rights is true enough (and treating homosexuals with respect is long overdue). Unfortunately, the claim that this ruling also strengthens marriage is almost certainly false. To understand why is also to answer the question so often pressed as a taunt by gay marriage supporters: How can extending marriage to gays possibly affect your marriage? The answer lies in the hidden message.
The road to gay marriage began with feminism. Feminists argued that there were no important differences between the sexes. Thus, mothering and fathering were interchangeable. The word "parent" became a verb. If mothers and fathers bring nothing unique or complementary to their roles, then it logically follows that two mothers or two fathers should be just as good. Talk of three or more parents misses the mark. The relevant number is one. If fathers are no different from mothers, then single women needn't pause before embarking on "parenthood" solo — and they aren't.
Along with feminism, the past few decades have featured a widespread retreat from the idea of family duty. Long before gay marriage was spoken of, we already had enshrined the idea of marriage as a matter of personal fulfillment for adults rather than first and foremost as a stable environment for children. Because marriage came to be seen as primarily about adult happiness, divorce boomed in the 1960s and '70s. It has drifted down in the 21st century, but remains double what it was in 1960.
At the same time, the idea that marriage is a necessary precondition for parenthood is withering. Marriage today is treated as optional by many parents, just one of many available paths. As Alito noted in his dissent, fully 40 percent of American births are now to unmarried women. Additionally, more than half of all children will spend some part of their childhoods in a non-nuclear family.
Heterosexuals managed this assault on marital stability without any help from homosexuals, but gay marriage ratifies it.
Requiring that same-sex unions be treated exactly the same as traditional marriages carries an implicit message: It confirms the view that the sexes are interchangeable. Every homosexual couple who raises a child together is choosing to deny that child a parent of the other sex. How will that social experiment turn out?
We have no idea. The social science literature is no help, because same-sex couples have not been studied long enough to make fair comparisons. (The cases studied so far are usually children whose same-sex parents began their married lives in different, heterosexual families.)
What the literature does show unequivocally is that children do best when raised by their married, biological parents. No other family structure, including stepfamilies, comes close. While death and divorce sometimes deny one or both parents to children, and while many single parents are able to raise happy, healthy citizens notwithstanding this hardship, we cannot honestly claim it makes no difference. Children who lose their mothers or fathers grieve for the loss — often even when they never knew the missing parent. Some children raised by same-sex couples have written of their pain at being separated from one biological parent, despite their love for their same-sex parents.
Adoption is probably the most successful social program we've managed to devise, and most adoptees grow up healthy and happy (my husband and I raised one ourselves). Yet few would argue that adoption makes no difference. An adopted child must grapple with feelings of abandonment. We wouldn't impose adoption on a child if it were possible for his natural parents to raise him, would we?
When a man and a woman marry, the natural outcome is biological children related to both parents. When homosexuals marry, any child raised must lose one natural parent. With gay marriage now the law, the message to heterosexuals is to continue to devalue the biological and social importance of mothers and fathers, and to discount the needs of children.
If there's a way, post-Obergefell, to convince heterosexuals that, on the contrary, mothers and fathers are indispensable, I'd love to hear about it.