Redefining marriage from the union of a man and a woman to the union of any two persons jettisons three foundational principles: first, the principle that children are entitled to a relationship with both parents, second, the biological principle for determining parentage, and third, the principle that the state recognizes parentage, but does not assign it.
The essential public purpose of marriage is to attach mothers and fathers to their children and to one another. The child is entitled to a relationship with and care from both of the people who brought him into being.
Same sex marriage redefines parenthood, as a side effect of redefining marriage. Up until now, marriage has made legal parenthood track biological parenthood, with adoption for exceptional situations. The legal presumption of paternity means that children born to a married woman are presumed to be the children of her husband. With this legal rule, and the social practice of sexual exclusivity, marriage attaches children to their biological parents. Same sex couples of course, do not procreate together.
Redefining marriage will have far-reaching legal consequences. Courts are awarding parenting rights to individuals who are neither biological parents nor adoptive parents. Let us call these people “non-parents.” The courts, and now even some legislatures, are giving parental rights to non-parents. Perfectly fit parents are having their rights diminished because they once had a sexual relationship with someone.To do this, the state must establish multi-part tests for determining whether a person warrants the status of “de facto parent.” The court ends up scrutinizing the minutiae of family life to make a determination about whether a person meets the criteria for being a de facto parent.
The alternative to the biological principle for determining parentage is the principle that the government decides who is a parent. Instead of simply recording parentage, the state will determine parentage, not in exceptional cases, but routinely. This is what “getting the state out of the marriage business” will eventually come to mean.
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