Published November 16, 2022
After holding their fire in the lead-up to a midterm election, Senate Democrats are reportedly poised to bring the Respect for Marriage Act up for a vote. Senate Majority Leader Chuck Schumer and his colleagues are hoping enough Republicans cross party lines to codify the Supreme Court‘s 2015 ruling in Obergefell v. Hodges, which made same-sex marriage legal across all 50 states.
Republicans know they are on the unpopular side of a hot-button social issue, and might be tempted to vote for a quick lame-duck passage, hoping to be rid of the problem one and for all.
The Supreme Court’s decision in Obergefell cut short the democratic process, and voting to affirm this act of judicial overreach would give the Biden administration a quick win and demoralize socially conservative voters. But beyond the political considerations, there are deeper reasons to oppose the bill.
Republicans and conservatives should offer a hearty “mazel tov” when our LGBT brothers and sisters opt for a lifetime of fidelity, commitment, and companionship. Ensuring all couples can access health care benefits, visitation rights, and all the other material privileges that married spouses can enjoy should be a no-brainer, and those who opposed such developments in years past were fighting the wrong battle.
But the institution of marriage itself—in law, custom, and tradition—is intimately bound up with the act of creating and raising children. Marriage, at its core, is the social institution most fundamentally oriented towards procreation. It is society’s way of harnessing, binding, and supporting the relationship that creates a new life, and it gives the child produced from that union (and his or her parents) the best chance at a stable life.
In other words, opposite-sex couples have the capacity to do something other pairings cannot without a third party becoming involved: conceive and bear a child. This inalterable biological reality should never be an excuse for discrimination against LGBT couples (or straight couples who cannot or choose not to get pregnant). But it does cry out for a set of policies that strengthen that relationship, and a political movement with the courage to say that truth out loud.
The latest version of the Republican platform lays out what the party’s stance should be, loud and clear. “Every child deserves a married mom and dad,” the GOP platform reads. “Our laws and our government’s regulations should recognize marriage as the union of one man and one woman and actively promote married family life as the basis of a stable and prosperous society.”
Any Republican senator considering voting for the Respect for Marriage Act should be able to answer what part of the above he or she no longer agrees with. Formally condoning the expansion of “marriage” to include any combination of two adults legitimates claims that individuals have a right to “reproductive freedom,” and that public policy should sanction, or even guarantee, practices like paid surrogacy or third-party reproduction.
Standing up for marriage’s distinctiveness, as a permanent union with procreative potential, is also a clear proclamation that kids deserve to know their mother and father. Especially in our genealogy-obsessed era, with increasing knowledge about how family medical histories can leave us vulnerable to certain types of disease, the biological link between mother, father, and child isn’t one that law should seek to efface.
Involving a third party in reproduction necessitates the imposition of market forces into the realm of family life (adopting a child who already exists is a separate discussion). Talking about babies as consumer products already raises real moral problems—to borrow the title of a book by Stanford ethicist Debra Satz, some things should not be for sale.
Indeed, the unquestionably uncomfortable power dynamics around wealthy couples (straight, gay, or otherwise) renting out the wombs of lower-income women across the world should give us pause, to say nothing of instances when the surrogate mother and the would-be parents disagree about whether to abort the child. The U.S. fertility industry is already known internationally as the “Wild West” due to its lack of safeguards—other countries increasingly have cracked down on the practice of paid surrogacy.
But blurring the lines between conjugal reproduction within marriage and third-party reproduction arranged by a couple that could not otherwise conceive makes it much harder to fight abuses. If marriage solely meant two adults who love each other and want to spend their lives together, the stakes of the impending vote would not be so high. But “marriage,” in our culture and legal system, implies children. Efforts to curb abuses in the fertility industry will run aground if they are seen as preventing married couples from seeking to escape “social infertility.”
Of course, the seeds of the destruction of marriage as a cultural institution were sowed in the 1960s and 1970s with the revolution in family law. No-fault divorce undermined the notion that marriage was a commitment that aspired to permanence, giving a legal thumbs-up to serial monogamy. Social conservatives should be spending just as much, if not more, time trying to unwind the cultural and legal developments that enable a culture of casual divorce as seeking to overturn Obergefell.
But a vote to codify Obergefell would be a vote to pretend that biology doesn’t matter. While the Supreme Court’s decision stands, its ramifications are still in the hands of courts. Formally enshrining its logic in law would hamstring future efforts to do what’s right for kids. Republicans should take a tough stand.
Patrick T. Brown is a fellow at the Ethics and Public Policy Center, where his work with the Life and Family Initiative focuses on developing a robust pro-family economic agenda and supporting families as the cornerstone of a healthy and flourishing society.