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Copyright (c) 2007 Rutgers University, The State of New Jersey Rutgers Law Review

Winter, 2007

59 Rutgers L. Rev. 233

LENGTH: 15904 words

SYMPOSIUM 2006: SAME-SEX COUPLES AND "THE EXCLUSIVE COMMITMENT": UNTANGLING THE ISSUES AND CONSEQUENCES: "HOW DOES SAME-SEX MARRIAGE THREATEN YOU?"

NAME: George W. Dent, Jr. *

BIO: * Schott-van den Eynden Professor of Law, Case Western Reserve University School of Law. B.A., Columbia College, 1969; J.D. Columbia University, 1973; L.L.M. New York University, 1981.

SUMMARY: ... In Lewis v. Harris , the New Jersey Supreme Court ruled on the legal status of marriage, a matter of immense importance, without ever really discussing why the law does or should care about marriage at all. ... It seems more likely, though, that recognition of SSM would result in little benefit to gays and substantial harm to traditional marriage. ... This does not necessarily mean that children raised by homosexuals are more likely to be homosexual, although some studies hint that they are. ... Defenders of traditional marriage don't need to explain the social significance of marriage; the proponents of SSM, including the minority in Lewis, have already done it for them. ... Because of different attitudes toward SSM, the law would have good reason not to hold same-sex couples to the same standards as traditional couples concerning such matters as adultery, child support and divorce. ... Second, more children are likely to be raised in this milieu if the law favors traditional marriage by giving it a unique status entailing both material, economic benefits and expressive, symbolic support. ... The New Jersey Supreme Court blundered when it failed to realize these truths in Lewis v. Harris. Everyone who cares about the fate of our society, and especially of its children, should encourage the legislature and New Jersey Supreme Court not to allow Lewis to damage society, but rather to preserve and strengthen traditional marriage and the family.

HIGHLIGHT: In Lewis v. Harris n1, the New Jersey Supreme Court ruled on the legal status of marriage, a matter of immense importance, without ever really discussing why the law does or should care about marriage at all. Accordingly, the decision is unsatisfactory not only for those who believe traditional marriage is special, but also for those who believe that the decision exacerbates inequality and injustice by further entrenching the privileged status of married people over unmarried people. The latter group asks why marriage is relevant to the law at all. On the other side, advocates of legal recognition of same-sex marriage ("SSM") often counter defenders of traditional marriage by asking "how does same-sex marriage threaten you?" This article responds to both questions.

TEXT: [*233]

I. The Lewis Decision

As the majority in Lewis found, those who drafted and approved the state constitution in 1947 "could not have imagined" that the constitution would provide for legal recognition of SSM. n2 Even if one accepts the idea of a "living Page 2 59 Rutgers L. Rev. 233, *233

constitution" by which a new constitutional right might be recognized because of a new public consensus, nothing like such a consensus has emerged about SSM. n3 The minority agreed about the lack of a consensus, n4 but was willing to disdain the beliefs of the people of New Jersey and substitute their own preferences.

[*234] The court found unanimously that restricting recognition to traditional marriage violated the principle of equal protection implicit in the state constitution. n5 The notion of equality is notoriously "empty." n6 The majority holds that like things should be treated alike, n7 but application of that principle depends on what things we deem to be alike. n8 To satisfy the equal protection requirement a law must "bear a substantial relationship to a legitimate purpose." n9 The court listed three factors to be weighed in applying this test: "the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction." n10

Most Americans do not now and never have believed that SSM is like traditional marriage. Unfortunately, the court disregarded both traditional and current public attitudes and substituted its own preferences, which it evidently considered superior to those of hoi polloi. n11 First, the court recited the extensive New Jersey law conferring rights on homosexuals, n12 but it then noted that "they still are denied many benefits and privileges accorded to their similarly situated heterosexual counterparts." n13

The court then discussed the "public need" for the statute affording special treatment to traditional marriage, and here we discover that this case was rigged - the state took a dive: "The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children." n14 Indeed, except for the use of the [*235] word marriage, "the State has not articulated any legitimate need for depriving same-sex couples of the host of benefits and privileges" of marriage. n15 The appellate division, refusing to be a party to this fix, had no difficulty identifying a public need for traditional marriage in the bearing and raising of children. n16 That feat was hardly Herculean; several other courts, n17 nearly every legislature in America and the rest of the world, and millions of individuals have done likewise. But this feat was beyond the abilities of the justices of the New Jersey Supreme Court.

Surprisingly, however, having played dead on the issue of the benefits and privileges of marriage, the majority then came to life when it discussed the significance of the word "marriage." The majority refers to the traditional definition of marriage and says that "to alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin" and have "far-reaching social implications." n18 That is certainly true, so how could the majority have simply assumed, without discussion, that changing the treatment of marriage in every way but the label used would not have "far-reaching social implications"?

The minority was even more obtuse in this regard. The minority opinion concedes - indeed trumpets - the "deep and symbolic significance" of legal recognition of marriage. n19 The minority quotes affidavits presented by plaintiffs referring to the "significant respect that comes with the declaration "we're married[;]'" that it "gives you automatic membership in a vast club." n20 The dissent also quotes with approval a statement that its "long traditions of historical, social, and personal meaning" make marriage "a social resource of irreplaceable value." n21 As Joseph Raz says: "Monogamy ... cannot be practiced by an individual. It requires a culture which recognizes it, and which supports it through the public's attitude and through its formal institutions." n22 Yet the minority never bothered to ask how radically [*236] changing those "long traditions" would transmogrify the "deep and symbolic significance" and "significant respect" attached to marriage. n23

Similarly, the dissenters, like the majority, display no curiosity about why, although many societies have tolerated at least some types of homosexuality, virtually all human societies throughout history have limited marriage to heterosexual relationships. The dissent simply notes that the State had eschewed a defense of the statute based on the "promotion of procreation and creating the optimal environment for raising children." n24 The dissent then cursorily concurs with the State's decision on the ground that "same-sex couples increasingly form the core of families in which children are conceived, born, and raised[,]" n25 and that "empirical studies comparing children raised by sexual minority parents with those raised by otherwise comparable heterosexual parents have not found reliable disparities in mental Page 3 59 Rutgers L. Rev. 233, *236

health or social adjustment[.]" n26 The dissent does not even acknowledge conflicting views.

Since the New Jersey Supreme Court utterly failed to do its job, those who care about the welfare of our society, and especially of its children, must address the issues that the court ignored.

II. Framing the Question

The majority and minority in Lewis clashed over how to frame the question before the court. The majority said the court "must determine whether the right of a person to marry someone of the same sex is so deeply rooted in the traditions and collective conscience of our people that it must be deemed fundamental ... ." n27 The majority then answered that question in the negative. n28 The minority objected: "When we ask the question whether there is a fundamental right to same-sex marriage "rooted in the traditions, and collective conscience of our people,' ... we suggest the answer, and it is "no.'" n29 The minority argued that the proper question is:

[*237] whether there is a fundamental right to marriage rooted in the traditions, history and conscience of our people ... . What same-sex couples seek is admission to that most valuable institution [i.e., marriage], what they seek is the liberty to choose, as a matter of personal autonomy, to commit to another person, a same-sex person, in a civil marriage. n30

This statement is misleading, if not false. People already have "the liberty to choose, as a matter of personal autonomy, to commit to another person, a same-sex person" in a wedding, to consider themselves married, and to be so considered by any other person or organization (including an employer) that wishes to do so. Unlike interracial couples under the statute struck down in Loving v. Virginia, n31 same-sex couples who marry in New Jersey are not subject to criminal punishment, or any other penalty. The only thing they cannot do is to compel the state and unwilling private parties to honor their arrangements as marriages equal to traditional marriages.

Beyond the misleading wording, the minority's reasoning is faulty. If the question is framed and answered as the minority does, it carries other significant implications. If there is complete "liberty to choose, as a matter of personal autonomy," n32 whom to marry, other restrictions on that choice must also be unconstitutional. In particular, there would also be a fundamental right to polygamy and consanguineous marriage. How does the minority address these implications? It simply ignores them. That dodge is typical; all courts that have endorsed SSM have elided the main arguments against it. n33 That omission renders the minority opinion fundamentally dishonest, but it was tactically necessary: no one has yet advanced a persuasive argument for distinguishing these arrangements if there is a fundamental right to SSM.

III. The Benefits of Traditional Marriage to Adults

The majority in the appellate division in Lewis upheld New Jersey's marriage law because of its benefits for children. n34 That is certainly the primary justification for the law and it will be discussed here shortly. First, however, it should be noted that traditional [*238] marriage also confers benefits on adults. One can, of course, argue that traditional marriage is not just instrumentally good but is intrinsically good. That is, traditional marriage is good apart from its material consequences. It is common and entirely appropriate for society, through democratic government, to make such a value judgment. In various ways, governments often support education, the arts, and natural beauty. In so doing the state need not prove that every form of support increases total wealth or improves health. It suffices to say that these things are intrinsically good.

Many, if not all, cultures throughout history have considered traditional marriage intrinsically good. Romantic heterosexual love and the bearing of children are often identified as at least part of that intrinsic good. As Stephen Carter says, "Most people ... see the value of children or the horror of murder without the need for explanation. It is not merely an instinct but part of their vision of the good." n35 Poets, artists and philosophers have considered the mutual Page 4 59 Rutgers L. Rev. 233, *238

commitment of marriage within the context of the complementarity of man and woman to be intrinsically good. Of course, those who disagree are free to try to persuade the electorate that SSM is intrinsically just as good and just as worthy of legal and social validation as traditional marriage. The heavy weight of collective human wisdom is against them, but they could eventually change public attitudes.

Traditional marriage also has material benefits for adults. Married people live longer, make more money, enjoy better health (both physical and mental), and report greater satisfaction with sex and with life generally than do unmarried people. n36 Marriage also curbs antisocial behavior by men. Married men are less likely to be incarcerated. n37 They are less likely to be sexually promiscuous, [*239] unfaithful to a longtime partner, or to abuse alcohol. n38 They work longer hours and make more money. n39

Advocates of SSM meet this claim with two objections. First, they question whether marriage makes people better off or whether people who are better off are more likely to marry. Several studies conclude that these differences do not stem entirely from selection effects but are in part a direct consequence of marriage. n40 Second, some advocates of SSM readily agree that marriage is instrumentally beneficial, and argue that recognition of SSM would extend those benefits to homosexuals without impairing the value of traditional marriage. n41 It seems more likely, though, that recognition of SSM would result in little benefit to gays and substantial harm to traditional marriage. n42

Despite frequent charges that traditional marriage is patriarchal and oppressive to women, n43 traditional marriage promotes equality of women. First, it promotes equality between a woman and a male partner with whom she lives: "the intensely conjugal and domestic orientation of the nuclear family resulted in a high measure of sexual equality and child-centeredness." n44 Marriage improves women's well-being. They are much less likely to be poor. n45 They are healthier and less subject to stress. n46 Marriage also shelters women from the [*240] dangers of the outside world. They are much less likely to be victims of violent crimes. n47 Given all this, it is hard to explain the opposition of feminists to traditional marriage.

Traditional marriage also promotes liberal democracy. "Many of liberalism's most cherished values - e.g., personal autonomy, equality, individual responsibility - depend upon the nuclear family for flourishing." n48 Indeed, the ascendancy of the West has been ascribed to the nuclear family:

The unique genius of the family as it came to be institutionalized in the West is that it fostered, and continues to foster, a particular set of values that helped give birth to liberal modernity... . It fostered ... individual responsibility, and a measure of equality between men and women, along with an unusual level of independence from the extended family. These norms, in turn, were particularly conducive to the rise of cottage-based capitalism and eventually industrial capitalism. n49

Again, however, the majority in the appellate division in Lewis did not base its decision on the benefits (intrinsic or instrumental) of marriage to adults, but rather on its benefits for children. This is appropriate because concern for children is the primary reason for the state to get involved in marriage.

IV. The Importance of Natural Parents

An initial question disregarded by the supreme court is whether reproduction is important. Let me put the question in algebraic form. If a + b = a, then b = 0. Designate a loving, committed relationship between two people as "a." Assume that a homosexual relationship is just as likely as a heterosexual relationship to qualify as such a [*241] relationship. Heterosexual relationships, however, have a second quality which homosexual relationships lack: the capacity for reproduction. Designate that quality "b." By saying that homosexual and heterosexual relationships are equally valuable, then, the court in Lewis is saying that a + b = a, and that "b," the capacity to reproduce, is worth nothing, valueless. That proposition should be rejected. It seems axiomatic - or, to use the language of the Declaration of Independence, a truth Page 5 59 Rutgers L. Rev. 233, *241

that is self-evident - that human life is intrinsically valuable. If so, then the creation of human life is intrinsically valuable, and the unique capacity of a heterosexual relationship is intrinsically worth something.

Since human infants cannot care for themselves, it should also follow that the raising of children is intrinsically important. Perhaps it is not axiomatic that this is best done by the child's biological parents. Advocates of SSM and the court in Lewis cite adoption by same-sex couples to show, they say, that heterosexual and homosexual couples are alike with respect to raising children. n50

That position is highly dubious. In all societies the bond between a child and its natural parents is revered. Adoption is (necessarily) accepted in all societies, and the tremendous effort exerted by adoptive parents often enables adopted children to flourish. However, adoption is almost always limited to situations where the natural parents are dead or unable or unwilling to raise their children. Adoption is almost always considered a misfortune, a regrettable but necessary alternative to being raised by one's biological parents. n51 Given these universal attitudes, it is not surprising that, in fact, children raised by their married, biological parents tend to fare better than other children in material respects. n52

[*242] Nor is the importance of the tie between children and their progenitors limited to material considerations; the tie is also unique emotionally. Children conceived by artificial reproductive technologies and reared apart from one or both biological parents "hunger for an abiding paternal presence." n53 More generally, some family experts argue for a "birthright of children to be connected to their mothers and fathers" n54 unless external circumstances prevent it or legally-mandated separation is necessary to protect the child.

One must wonder about those who deny the significance of the creation of human life. Most people who have borne children consider it a significant act and, although many people feel some bitterness toward their parents, most people feel that their creation by their parents was significantly positive. When some deny this significance, what are they saying about their parents and themselves?

For the supreme court in Lewis the unique ability of heterosexual couples to create human life and the incontrovertible importance of natural parents should have been decisive: Plaintiffs' equal protection claim should have been denied because heterosexual and homosexual couples are clearly not alike. That some heterosexual couples are unable or unwilling to bear children does not change that fundamental difference. n55 How the law should treat their differences is a difficult question on which reasonable people can disagree, but it is a policy question properly relegated to the [*243] democratic process and not a question of constitutional equal protection.

V. Alternative Heterosexual Families

The dissent in Lewis claimed that empirical studies disprove that traditional marriage offers any benefits for the raising of children. n56 This claim is flawed. First, the dissent cited "empirical studies comparing children raised by sexual minority parents with those raised by otherwise comparable heterosexual parents." n57 However, since homosexual couples cannot create children, the comparison must necessarily be to adoptive heterosexual parents. As noted, children fare best when raised by their married biological parents. n58 Further, as several scholars have shown repeatedly, all the studies on which the dissent's conclusion is based have major methodological deficiencies, especially the use of small, self-selected samples. n59

Further, many experts believe that at least some findings of these studies are probably wrong. For example, several studies claim that the sexual orientation of children raised by same-sex couples does not differ from that of children raised by heterosexual parents. n60 Critics point out that this is almost certainly false because considerable evidence shows that the sexual attitudes of children are influenced by their parents and are influenced differently by mothers and fathers. n61 This does not necessarily mean that children raised by homosexuals are more likely to be homosexual, although some studies hint that they are. n62 However, being raised by homosexual parents may distort children's sexuality in ways that we do not yet understand. Page 6 59 Rutgers L. Rev. 233, *243

[*244] More generally, there seem to be consequences to a child from having a mother and a father in the home. Men and women are naturally different. n63 Not surprisingly, then, "men and women bring different strengths to the parenting enterprise." n64 Mothers are more sensitive than fathers to children's behavior and give them better physical and emotional nurturing. n65 Fathers are better at imposing discipline, especially for older boys. n66 Fathers are more likely than mothers to encourage children to undertake difficult tasks, to overcome obstacles, and to try new activities. n67 Biological fathers give more attention to their children and are less likely to molest them sexually than a man cohabiting with their mother. n68 Children raised apart from the biological father suffer from that lack of attention. n69

Studies finding that children benefit from living with their married biological parents are not based on comparisons with children in homes of gay couples, but it would be surprising if the latter were just as good. The studies repeatedly find that the traditional home is better for children than a home with one biological parent and another adult of the opposite sex of the parent. There is no reason to believe that a home with one biological parent and another adult of the same sex would be better. Moreover, gay couples cannot give children the benefits of having both a mother and a father. At the least, it would be foolhardy to assume without strong evidence that gay couples match the traditional home in raising children. We are now far from having such evidence.

Similarly, there are reasons for concern about situations where adoption of a child by a same-sex couple occurs not after the natural parents have proved unable or unwilling to raise the child, but where exclusion of one or both natural parents is planned at the outset, as in cases of artificial insemination. Only now are studies of such [*245] children emerging, and the findings are troubling. n70 Again, loss of one's natural parents is universally considered a misfortune and adopted children long for knowledge of, and contact with, their natural parents. The damage to children may be much greater when, as often happens with children raised by same-sex couples, "adults purposefully conceive a child with the clear intention of separating that child from a biological parent." n71 Can we then casually condone arrangements that deliberately deprive a child of its natural parents?

VI. What Is the Threat from Same-Sex Marriage?

A. How Does Same-Sex Marriage Threaten You?

Although the capacity of heterosexual couples to create life and to nurture the life they create differentiates them from homosexual couples, advocates of SSM deny that this difference warrants the traditional legal treatment of marriage. In particular, they argue that, whatever the legal significance of child-bearing, traditional marriage is not harmed by legal recognition of SSM. The argument is often made with a rhetorical question like: "How does same-sex marriage threaten you?" n72 The implication, of course, is that it does not really threaten anyone. This argument deserves an answer.

The question implies that one should not oppose a policy unless one is personally threatened by it. That implication would be properly denounced in other areas. Suppose, for example, that an opponent of funding for AIDS research demanded of a supporter: "How does AIDS threaten you?" For both AIDS and SSM, the answer should be that personal threat is not the issue. Even those at little personal risk of contracting AIDS can support research both because of its devastation of those who are infected and the resulting damage to society as a whole. Similarly, traditional marriage can be defended because of the benefits of its legal recognition for others and for society as a whole. I now turn to that issue.

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B. The Consequences of Legal Recognition of Same-Sex Marriage

The consequences of legally recognizing SSM are quite uncertain, but we can reasonably predict that the detriments will outweigh the benefits. Further, we should assign a fairly heavy burden of proof to the supporters of SSM. Considering these two factors, SSM should not be legally recognized at this time.

1. The Burden of Proof Page 7 59 Rutgers L. Rev. 233, *246

As the majority in Lewis recognized, changing the legal definition of marriage would "render a profound change" and have "far-reaching social implications." n73 The dissent tacitly agreed when it referred to the "deep and symbolic significance" of marriage. n74 The exact nature of the "profound change" and "far-reaching social implications" is uncertain because, with a few recent exceptions, SSM has never been valid in any place or time in human history. n75

That fact alone counsels caution. Cultures vary greatly from each other, and a culture often changes dramatically over time. In other words, the demands of survival leave room for considerable cultural diversity. It is all the more remarkable, then, when some practice is followed in every age in virtually every corner of the globe. Proponents of SSM like to ascribe the preference for traditional marriage to mere bigotry against homosexuals, but if that were the only explanation the practice would not be universal. If a custom is important to a society's survival, it "will be routinely rediscovered by every culture, without need of either genetic descent or cultural transmission of the particulars." n76 That suggests that the universal confinement of marriage to opposite-sex relationships is important to a culture's survival.

As Holmes said, "the life of the law has not been logic; it has been experience." n77 Many believe that the abstract, theoretical, non-empirical argument for validating SSM is weak, but even those who find it persuasive must admit that experience offers no support for it yet. Since the ramifications of validating SSM are uncertain, how [*247] should we proceed? One gay activist counsels: "We ought to pull the pin and see what happens." n78 Most people would not behave in such a way if their own well-being were at stake.

The effects of recognizing SSM are especially difficult to predict because the effects of marriage law are primarily expressive and because marriage is unique. In forecasting the economic effects of changing the law we can look to empirical knowledge about people's economic behavior. Even then forecasts are hazardous; the anticipated benefits of government acts are often not realized, and the acts often generate unintended consequences. Predicting the expressive effects - the effects on social norms - from changing the law is even more hazardous because we know less about the evolution of norms than we do about economic behavior. Further, there is no other institution like marriage, so there is no precedent we can consult in trying to project the effects of recognizing SSM. The closest analogies would be the changes in the law of divorce and illegitimacy, and both of these well-intended reforms had disastrous consequences. n79

One thing we do know about the expressive effects of legal change is that they can be dramatic. When many people are conflicted about a norm, legal change can influence the attitudes of some people, and they in turn may influence others. Thus, the law can initiate a "norm cascade" n80 or "chain reaction." n81 Accordingly, unlike an economic benefit or regulation, which can be repealed with reasonable expectation of restoring the status quo before it was adopted, an expressive change in the law can trigger effects that are difficult or impossible to unwind. Despite some claims that the nuclear family is a recent invention, it has been the norm for centuries, at least in Western civilization. n82 If the attitudes toward the family that have slowly formed over these centuries are demolished, and the effect is seen to be detrimental, it is unlikely that by simply repealing recognition of SSM we will be able restore the status quo ante and undo the damage.

Many promoters of SSM seem heedless of its social consequences. As Professor Amy Wax says, pluralists question "basing social policy and law on observed generalizations, even if those are empirically valid at the moment." n83 Callous disregard of the [*248] social consequences of the policies one supports is a fault often ascribed to conservatives by liberals, sometimes with good reason, as with the disastrous "war on drugs." In this case the heartless indifference is on the left. As we see in our inner cities today, when respect for the traditional family erodes, and the traditional family ceases to be normative, those who suffer most are children, especially poor children. n84 One recent study finds that the growth in child poverty in America since the 1970s stems almost entirely from the shrinking number of children living in married families. n85 The indifference of SSM's fans to all this calls to mind the Buchanans in The Great Gatsby: arrogant libertines who "smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together, and let other people clean up the mess they had Page 8 59 Rutgers L. Rev. 233, *248

made... ." n86 We now have a caste system in which the elite have the resources to keep most of their marriages intact and to cushion the blows (especially to children) in the minority of cases where marriages do not form or fall apart. The poor (who lack those resources) and, especially, their children suffer the ravages of marital disorder. n87 The intellectuals and jurists who have smashed up traditional marriage are part of the elite. n88 They are either recklessly oblivious or contemptuously indifferent to its effects on the less fortunate.

In forming social policy we should refuse to be so cavalier and should instead follow the precautionary principle. n89 SSM should be treated like global warming; since we don't know what the effects of either one will be, in both cases we should move carefully in order to avoid precipitating a disaster. It would be rash to approve SSM unless and until experience in states that now do so vindicates SSM.

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2. The Significance of Law to Marriage

The law has traditionally been concerned with marriage because of the need to help children. Again, this has been obvious to many courts, but it was not even argued by the state in Lewis and the justices could not figure it out on their own. n90 Some advocates of SSM state that the argument for traditional marriage is "the state's interest in encouraging procreation." n91 Clearly this is not the argument of most defenders of traditional marriage. "Marriage is not a factory for childbearing. Marriage exists to encourage men and women to create the next generation in the right context and simultaneously to discourage the creation of children in other contexts - out of wedlock in fatherless homes." n92 Where this concern does not apply (as in same-sex relationships, for example), the law of marriage should not apply.

The law supports marriage in part by providing economic benefits (such as tax breaks and coverage of spouses under Social Security) to married couples. However, these economic benefits are generally meager and often outweighed by the economic liabilities of marriage, such as the "marriage tax penalty." n93 The law also imposes mandates on married people. For instance, married parents are required to provide financial support for their children. However, so are unmarried parents. Thus marriage makes little difference to the legal duties of parents to their children.

Where marriage law does change legal duties, those changes may not be appropriate for many same-sex couples. The financial unity of (traditional) married couples in law makes sense because child care and gainful employment are usually divided unequally. [*250] This is often untrue of same-sex couples. n94 For traditional couples it has been assumed that a child adopted by one of them or artificially conceived by one of them with an outsider (such as a sperm or egg donor) would be a child of both of them. With same-sex couples this assumption may be inappropriate. One may want to adopt or conceive a child without the other being a parent. In short, the law of marriage designed for traditional couples may not work for same-sex couples.

The law affects marriage primarily through its expressive function "in expressing social values and in encouraging social norms to move in particular directions." n95 However, "law cannot by itself create or define social institutions; they arise out of and are sustained by social attitudes and practices. Law can only operate at the margin ... to affirm, to assist, to adjust institutions." n96 "Because societies care about family obligations they make them part of their systems of honor[.]" n97 The law reinforces the honor society confers on marriage by giving it official recognition, even though the material consequences of that recognition are small. n98 It is appropriate, then, that advocates of SSM stress the symbolic or expressive importance of its legal recognition. n99

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3. The (Meager) Benefits of Same-Sex Marriage

Fans of SSM believe that its legal validation would generate material benefits for gays. William Eskridge, for example, says that recognizing SSM would "civilize gay men by making them more like lesbians." n100 For several reasons, Page 9 59 Rutgers L. Rev. 233, *251

though, the material benefits of SSM are likely to be paltry. First, the number of committed same-sex relationships is tiny. The court in Lewis claimed that New Jersey has "16,000 same-sex couples [thus 32,000 people] living in committed relationships" in a population of 8,500,000. n101 That's less than 0.4% of the population.

Second, most homosexuals in "committed relationships" do not marry even if SSM is recognized. In Massachusetts 16.7% of gays have married. n102 In Holland, where SSM has been valid the longest, the number is 2-6% of gays. n103 Apparently the numbers drop when the novelty wears off. When gay marriages are formed, they tend to be short-lived. n104 Some gays prefer domestic partnerships even when SSM is valid. Thus many gays protested when the Boston Globe announced that, since gays could now marry in Massachusetts, the paper would stop giving benefits for domestic partnerships. n105 This is not surprising given that many gay activists consider marriage undesirable for gays. n106 They fear that legal recognition of SSM [*252] would force homosexuals into a mold that was not designed and is not appropriate for them. For gay men who do marry, it is unlikely that SSM would "civilize" them. Men are not domesticated by a wedding and a ring, but by a wife and children. n107

If SSM were recognized, even gays who marry would realize few benefits. The economic consequences of marriage are generally minor and sometimes negative. n108 This fact helps to explain why few gays marry even when SSM is valid.

Plaintiffs and the minority opinion in Lewis stressed the "deep and symbolic significance" of SSM and the "social respect" that would come with it, making it "a social resource of irreplaceable value," n109 but realization of these benefits is dubious. Abraham Lincoln asked: "How many legs does a dog have if you call a tail a leg?" The answer, he said, is four: "You can call a tail a leg, but that doesn't make it so. The dog still has only four legs." n110 True, marriage has been a venerated institution, but it has always been limited to man-woman couples. In the eyes of many people, calling a homosexual relationship a marriage will not make it so. n111 Whatever the law says, they will still consider SSM a caricature of the real thing.

Undoubtedly, legal recognition of SSM would, over time, alter popular attitudes somewhat, n112 but the change is likely to be slow and small. The legal definition of marriage has always coincided with the traditional religious definition so that legal marriage has shared the additional respect that our society grants to widely observed religious institutions. n113 Recognition of SSM would place the legal [*253] definition in opposition to the religious definition, thereby dividing us into two separate and hostile camps. That division would not soon go away. Traditional religious sects are not going to disappear; indeed, in recent decades they have grown while liberal sects have shrunk. n114

Likewise, the benefits of recognizing SSM to children raised in SSM households are likely to be paltry. Whatever material legal benefits that are currently afforded to other adopted children, but denied to children in SSM homes, can be achieved with much less controversy simply by revising adoption laws. These children now suffer from disrespect for homosexuality. This problem can be combated by public efforts to promote decency and civility for gays and for children in their homes. Such efforts would encounter little dissent. The attempt to obtain these benefits through recognition of SSM, by contrast, provokes wide opposition that has prevailed in all but a few states. To persist in this attempt suggests that its backers care more about the symbolic effects of approval of SSM for adults than they do about the problems of children being raised by gay couples.

In recent decades, respect for marriage in the West, including America, has declined, partly because of legal changes urged by people who, like many boosters of SSM, intended not to erode respect for marriage but to remove a stigma from some other conditions. Thus, the Supreme Court struck down laws discriminating against illegitimate children on the ground that it was unfair to punish a child for the sins of the parents. n115 That sentiment is laudable, but a side-effect of the change was to diminish the pressure on parents to be married. Illegitimacy exploded. n116 The primary victims were children. n117

Likewise, many cheerleaders for SSM want only to relieve homosexuals of the stigma they suffer. However, if the law jumbles SSM and traditional marriage together, many people will conclude that the law has thrown in the towel and Page 10 59 Rutgers L. Rev. 233, *253

no longer seriously respects marriage. The result, then, may be less to raise the esteem for homosexuals and for SSM than to shrink esteem for traditional marriage. Of course, that is a result that some gay activists predict [*254] and desire. n118 If it is also a result that most Americans want, so be it; this is a democracy. But we should not delude ourselves into thinking that we can transmogrify society's most fundamental institution without changing people's attitudes about that institution.

4. The Detriments of Same-Sex Marriage

Defenders of traditional marriage don't need to explain the social significance of marriage; the proponents of SSM, including the minority in Lewis, n119 have already done it for them. But would the prestige of marriage survive, unimpaired, if SSM were valid?

The expressive function of law in promoting norms is most effective when the norms it promotes are consistent with society's traditional and current attitudes; it is least effective when it contradicts those attitudes. The law makes its greatest expressive impact when many people are ambivalent about an issue. Prohibition was ineffective because most Americans did not think that drinking alcohol was immoral or should be illegal. Indeed, the drinking of wine is frequently mentioned in both the Old and New Testaments and is integral to some rites in both Judaism and Christianity.

By contrast, the vindication of interracial marriages in Loving v. Virginia n120 brought American law back into line with Jewish and Christian doctrine and Western tradition, which had never forbidden interracial marriage. n121 The anti-miscegenation laws in several American states were aliens, misfits, in these traditions. It is unremarkable, then, that no serious effort arose to undo Loving and that opposition to it quickly faded.

Although partisans of SSM, including the minority in Lewis, n122 often invoke Loving in support of their argument, the foregoing shows that this claim gets in backwards. Like the anti-miscegenation laws, SSM is an abnormality, an aberration from Judeo-Christian and Western tradition. In this respect it resembles Prohibition. The analogy is imperfect, though. Americans first approved Prohibition; [*255] only the experience of it opened their eyes and prompted them to repeal it. n123 By contrast, most Americans have never recognized SSM; they consider gay marriage a "mocking burlesque" n124 or "mere parody" n125 of the real thing. Although he believes that recognizing SSM would "buttress the ethic of heterosexual marriage," Andrew Sullivan acknowledges that "even those tolerant of homosexuals may find this institution [marriage] so wedded to the notion of heterosexual commitment that to extend it would be to undo its very essence." n126 Efforts by a few courts to foist it upon them have precipitated overwhelming support for constitutional measures to forbid it. n127

A recent report from the Institute for American Values entitled Can Government Strengthen Marriage? urges that government not "blur the distinction between marriage and non-marriage." n128 Why not?

The harder it is to distinguish married couples from other kinds of relationships, the harder it is for communities to reinforce norms of marital behavior, the harder it is for couples to identify the meaning of their own relationship, and the more difficult it is for marriage to fulfill its function as a social institution. n129

As Carl Schneider puts it, "the force of [social] institutions comes from their distinctiveness... . The broader the scope of marriage, the weaker its principles. The more broadly you define marriage, the less stringent the demands you can make of people in it." n130 He quotes Kath Weston, an advocate of "families we choose:" "Most chosen families are characterized by fluid boundaries." n131 "But," says Schneider, "where boundaries are fluid, where one family barely resembles another, where erotic and platonic ties are hardly [*256] distinguishable, marriage is no longer special." n132 "Yet making marriage special is part of making it work as a social institution." n133

The Institute for American Values' report says not a word about SSM, but its discussion illuminates how validating SSM would blur the distinctiveness of marriage. It says: "The goal of marriage law and public policy reforms is to Page 11 59 Rutgers L. Rev. 233, *256

increase the proportion of children who are raised by their own two married parents in low-conflict marriages." n134 The report then recommends several strategies, including: "Reduce unmarried childbearing, delay pregnancy, and legitimate births;" n135 and: "Add a marriage message to teen-pregnancy prevention." n136

This grand goal and the recommended strategies to achieve it deal with childbearing and are irrelevant to SSM. The expressive function of marriage law would be diluted by extending it to relationships that are inherently incapable of creating children and that exclude any possibility of children being raised "by their own two married parents." The report also advises that government "communicate a socially shared preference for marriage as the ideal family form." n137 However, many who support legal recognition of SSM do not want government to pressure gays to marry. n138 If SSM were valid, their opposition to such pressure would ipso facto weaken the effort to promote marriage. If the opponents succeeded, even to the limited extent of exempting gays from the effort, the social significance of marriage would be further blurred.

Some critics of traditional marriage call it archaic, obsolete, antiquated, outmoded, n139 but the contrary is true: "Our nation's contemporary political and economic institutions depend even more than before on citizens who embrace the values and virtues fostered by the nuclear family ... ." n140 Until recently most people did not need the higher education and bourgeois personal habits that are widely necessary in our electronic age. To acquire these assets children need [*257] both the higher income n141 and the effective nurturing that the traditional family best provides. n142

Recognition of SSM would also generate unbearable pressure to expand further the legal definition of marriage to include, at least, polygamy and endogamy. n143 Again, the principle trumpeted to demand approval of SSM is, as the minority in Lewis said, the "liberty to choose, as a matter of personal autonomy," whom to marry. n144 This principle is even more compelling for polygamy and endogamy since both have had much wider acceptance through history in various cultures. n145 The minority in Lewis and many other zealots for SSM do not even bother to try to differentiate them from SSM. That is almost certainly a wise decision since no one has yet offered a plausible basis to do so.

Not surprisingly, then, a movement to legalize polygamy has emerged and gained strength in academia and the left. A recent manifesto, Beyond Same-Sex Marriage, endorsed by hundreds of scholars and political activists like Gloria Steinem, Cornel West, and Barbara Ehrenreich, demanded recognition of "committed, loving households in which there is more than one conjugal partner." n146 In light of the nullification of criminal sodomy laws in Lawrence v. Texas, n147 laws barring polygamy are already constitutionally indefensible. If SSM be recognized, it will be impossible in principle not to validate polygamy as well. Endogamy does not yet enjoy such support, but it, too, already has some enthusiasts. n148 Alternatively, [*258] the law might ultimately cease to give distinctive treatment to any form of marriage, domestic partnership or civil union. This is a result favored by some. n149

Other changes in the law would inevitably follow a radical redefinition of marriage, though exactly what they would be is hard to forecast. The difficulties of prediction are illustrated by our experience with divorce. Liberal divorce was promoted on the theory that some marriages are irreparably broken and that it is better for both the couple and their children if the law readily acknowledges that fact and terminates the relationship rather than perpetuating the family's misery by forcing the couple either to remain married or to suffer a long, agonizing divorce over questions of fault. n150 Liberal divorce, it was thought, would not affect marriages that were not in fact already dead. n151

In any event, divorce rates skyrocketed. n152 We then learned that divorce damages children far more than previously thought. n153 It also inflicted particular damage on women. n154 More broadly, liberalized divorce undermined the commitment couples make to marriage and the security they feel within it by demolishing the protection the law formerly gave to spouses who played by the rules. n155

Given the disastrous failure to foresee the effects of liberalized divorce, we cannot reasonably accept the unsubstantiated predictions that recognizing SSM would not wreak further havoc. SSM would differ fundamentally from traditional marriage in its creation, operation, and termination. First, few gays will marry. n156 Second, [*259] despite the characterization by advocates of SSM of "exclusive and permanent commitment" as the central feature of Page 12 59 Rutgers L. Rev. 233, *259

marriage, n157 gay couples that do marry will tend to have a lower level of commitment than traditional couples. n158 Apart from the obvious fact that gay couples would bear no children, they would have more adultery and lower levels of commitment than traditional married couples. n159 To some extent this would result from the intrinsic nature of homosexuality; since it does not create children, there is no reason to worry about confusion over paternity and the husband's economic support for the wife's children that adultery can cause for traditional couples. Also, bearing children together tends to tighten the marital bond. n160 Only opposite-sex couples can do this. Further, the social expectations that impinge on traditional couples would not extend to gay couples. Third, divorce would be more common among gay couples, again because of both intrinsic differences n161 and different social expectations.

Although the magnitude of the effect of all this on the social meaning of marriage cannot be projected precisely, it would certainly be detrimental. Some fans of SSM (including some participants in this symposium) deny that recognizing SSM would alter the social meaning of marriage, n162 or even claim that it would enhance respect for marriage. n163 However, other fans of SSM, being either more candid or more realistic, predict (and often hope) that recognizing SSM will seriously alter the social meaning of marriage. n164

[*260] Recognizing SSM would bring within the realm of legal marriage a group that generally has no interest in wedlock, whose members have a low commitment to the marriages into which they do enter, and whose marriages often end in fairly rapid divorce. n165 This would not enhance the social prestige of marriage. Moreover, recognizing SSM would, for the first time in American history, extend the definition of marriage to relationships that are inherently incapable of creating human life. Accordingly, it would shift the social meaning of marriage away from a child-centered vision and toward a vision of marriage as intended for the convenience and gratification of adults. n166 The effectiveness of norms depends on their being normal - a principle loses its social influence if most people ignore it. Recognizing SSM would add to the marriage pool a number of people who mostly don't want to marry. That would reduce the normativity of marriage.

It is similarly hard to quantify the likely legal effects of recognizing SSM, but again they would be negative. Because of different attitudes toward SSM, the law would have good reason not to hold same-sex couples to the same standards as traditional couples concerning such matters as adultery, child support and divorce. The law could fashion separate standards for SSM, but to do so would expose the error of having declared it fundamentally equal to traditional marriage in the first place. Accordingly, it is likely that the law would seek a compromise that splits the difference between the ideal standards for two different kinds of relationships. That is, it is likely that the law would compromise the protection of traditional marriage.

VII. The Alternative of Domestic Partnerships or Civil Unions

The decision in Lewis is somewhat cryptic about remedies. The majority said that "the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples." n167 However, the majority did not say that "a parallel structure" would necessarily satisfy its preferences. It said only the court would "defer until [the legislature] has spoken" and that "our democratically elected representatives should be given a chance to address the issue... ." n168

[*261] If recognition of SSM is unwise, is it wise to create domestic partnerships or civil unions that have the same legal features as marriage and differ from it in name only? Both the majority and the minority in Lewis agreed that the name "marriage" is important. n169 "The word marriage itself - independent of the rights and benefits of marriage - has an evocative and important meaning to both parties... . To alter that meaning would render a profound change in the public consciousness." n170 Thus, the minority felt that erecting a separate structure for same-sex couples would convey "a message that these unions were in some way second class units unworthy of the term "marriage'[,] ... that these are less important family relationships." n171

The court is right that the word "marriage" has a unique social significance that would not necessarily attach to a Page 13 59 Rutgers L. Rev. 233, *261

"parallel structure," even if it had the same legal effects. Accordingly, the damage to the social function of marriage might be limited. On the other hand, everyone will realize that the "parallel structure" is marriage in all but name. Further, everyone will know that this was done under mandate from the state supreme court declaring that, as a matter of constitutional principle, same-sex couples have a right to the same legal treatment as traditional married couples. Marriage is not a grab-bag of unrelated features that we can divide as we wish; it is an organic institution. To rip it apart as the majority did is to mutilate its essential nature.

Of course, with the unprincipled political machinations of pluralistic, democratically elected bodies, two groups may get equivalent treatment without the equality being viewed as a matter of rights or principles. One group may be irate that it has fared no better than another that it considers less worthy, but equal treatment based on horse-trading and partisan maneuvering is not viewed as offensive or insulting as equal treatment premised on principle may be. Thus, by making the equal treatment of same-sex couples an issue of rights and principles, the New Jersey Supreme Court "blurred the distinction between marriage and non-marriage," n172 which defenders of traditional marriage oppose, n173 and [*262] may have exacerbated the wound to the prestige of the institution of marriage.

Recognition of domestic partnerships for gays inevitably brings pressure to offer the same option to others. In New Jersey, domestic partnerships are already available to certain opposite-sex couples over the age of 62. n174 Given the New Jersey Supreme Court's ruling that the different treatment of SSM did not "bear a substantial relationship to a legitimate governmental purpose," n175 it is doubtful that the arbitrary age cutoff in the Domestic Partnership Act could survive an equal protection challenge. Experience in Europe confirms the fear that when the law offers forms of domestic relationships other than marriage, many opposite-sex couples will elect these rather than marriage. n176 Given the clear benefits of traditional marriage, why would we want to undermine it?

In addition to the Domestic Partnership Act, the New Jersey legislature has enacted laws barring discrimination against homosexuals in several contexts. n177 Significantly, the court in Lewis held that these laws "provide committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples." n178 In other words, since the legislature had enacted several laws beneficial to gays, it could not stop short of giving them full equality except, maybe, for the right to the legal label "marriage." n179 Although this reasoning is bizarre, opponents of such legislation in other states will undoubtedly cite the decision in Lewis to argue that by its enactment the legislature and the voters will surrender their control of the law; courts will use it as a pretext to impose a full equality that many people may not want.

Of course, most people will agree that discrimination against gays is improper in many cases and should be illegal in some cases [*263] and that cohabiting couples, including same-sex couples, should have some legal status beyond what any two people can obtain by contract. Most people would agree, for example, that cohabiting couples should have hospital visitation rights and that homosexuals should not be excluded from most civil service jobs.

Although many people and institutions oppose child custody and adoption by gay couples, the law sometimes permits it. Of course, the law could permit any individual or group to have custody of or to adopt a child; it is unnecessary to tie child custody or adoption to marriage. A widower might want his mother, mother-in-law or sister to be co-guardian of his children, for example, without wanting to marry that person. In short, the legal treatment of cohabitants and others with special personal affiliations, whether gay couples or otherwise, can be handled without importing wholesale the legal treatment of marriage. By expecting each relationship to contribute "according to its abilities" and treating each "according to its needs," n180 we can not only create a more rational policy for each of the many and varied personal affiliations, but also avoid an undesirable blurring of "the distinction between marriage and non-marriage." n181

VIII. Where Do We Go From Here?

The New Jersey Supreme Court blundered when it ordered the legislature to provide same-sex couples the same "benefits and privileges" offered to opposite-sex couples who marry. n182 The legislature had to treat this decision with Page 14 59 Rutgers L. Rev. 233, *263

respect but need not have abjectly kowtowed to it. First, the legislature is not an ordinary litigant; it is a branch of government equal, not subordinate, to the judiciary. The legislature has a paramount duty to act in the public interest and to uphold the Constitution. To do that it must determine the meaning of the Constitution, and not simply abandon that task to the judiciary. n183 Second, this is not a mundane fender-bender case; it involves constitutional issues concerning society's most fundamental institutions - marriage and the family. Third, because the state's attorney threw the case by failing to present any serious justification [*264] for the marriage law, the New Jersey Supreme Court did not have a fair opportunity to weigh those justifications.

Given these unusual circumstances, the legislature should first have decided what is in the public interest. Given the considerations described in this article, it would have been wise for the legislature to conclude that existing law should be preserved. Had the legislature so concluded, it should have entered into a respectful dialogue with the supreme court

Since the supreme court in Lewis was not presented with an explanation of the importance of the existing marriage law, the legislature should have adopted a resolution setting forth its understanding of the law's importance. The legislature should then have asked the court not to refuse this dialogue and ignore all explanation of the law but to join the dialogue and give the explanation sincere, serious consideration. It is hoped that the supreme court, presented with this opportunity, would have seized it and reached the prudent conclusion, which would have been to uphold the marriage statute.

That is not what has happened so far, but the legislature can still revisit the issue in the future. If that seems unlikely, an amendment to the state constitution can be sought. An effort in this direction has already begun. n184 Achieving that amendment would be politically difficult, but the importance of traditional marriage makes the effort worthwhile.

Conclusion

Three propositions are clear. First, society benefits in several ways from traditional marriage. Children fare best when raised by their married biological parents and traditional marriage also benefits adults. Second, more children are likely to be raised in this milieu if the law favors traditional marriage by giving it a unique status entailing both material, economic benefits and expressive, symbolic support. Third, giving same-sex relationships legal status identical or very similar to that given to traditional marriage would impair the benefits of traditional marriage to society. The New Jersey Supreme Court blundered when it failed to realize these truths in Lewis v. Harris. Everyone who cares about the fate of our society, and especially of its children, should encourage the legislature and New Jersey Supreme Court not to allow Lewis to damage society, but rather to preserve and strengthen traditional marriage and the family.

Legal Topics:

For related research and practice materials, see the following legal topics: Family LawMarriageNature of MarriageFamily LawMarriageValidityMarriages by DuressFamily LawMarriageValiditySame-Sex Marriages

FOOTNOTES:

n1. 908 A.2d 196 (N.J. 2006). Page 15 59 Rutgers L. Rev. 233, *264

n2. Id. at 209.

n3. See id. at 209-10. In the same week that this Symposium was held, citizens approved constitutional amendments to confine the definition of marriage to a union between one man and one woman in seven of the eight states where the issue was on the ballot. This raises the number of states that have adopted such measures to nineteen. Only one, Arizona, has rejected such a proposal, and the reason does not seem to have been support for SSM. See Elizabeth Mehren, Gay-Marriage Votes Get Diverse Spin from Activists, L.A. Times, Nov. 9, 2006, at A21.

n4. See Lewis, 908 A.2d at 231 (Poritz, C. J., concurring and dissenting).

n5. See id. at 212-21.

n6. Peter Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537, 537 (1982).

n7. See Lewis, 908 A.2d at 211-12 (the "first paragraph to our State Constitution "protects against injustices and against the unequal treatment of those who should be treated alike.'") (quoting Greenberg v. Kimmelman, 494 A.2d 294, 302 (N.J. 1985)); see also Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) (holding that the Equal Protection Clause is "essentially a direction that all persons similarly situated should be treated alike."); Aristotle, Ethica Nicomachea V.3, at 1113a-13b (W.D. Ross trans., Clarendon Press 1925) ("Things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness.").

n8. See Westen, supra note 6; see also John E. Nowak et al., Constitutional Law 571 (4th ed. 1991) ("Equal protection is the guarantee that similar people will be dealt with in a similar manner ... . In reviewing any classification it must be determined whether or not the persons classified by the law for different treatment are in fact "dissimilar.'").

n9. Lewis, 908 A.2d at 212.

n10. Id. Page 16 59 Rutgers L. Rev. 233, *264

n11. See id. at 212-21.

n12. Id. at 213-19.

n13. Id. at 215.

n14. Id. at 217.

n15. Id. at 217 (emphasis added). Apparently the only justification for the law offered by the State was "the interest in uniformity with other states' laws." Id. at 218. Not surprisingly, the court found this insufficient. Id. at 217-22.

n16. Lewis v. Harris, 875 A.2d 259, 269 (N.J. Super. Ct. App. Div. 2005).

n17. See, e.g., Hernandez v. Robles, 805 N.Y.S.2d 354, 375 (App. Div. 2005); Morrison v. Sadler, 821 N.E.2d 15, 30-31 (Ind. Ct. App. 2005) (referring to "the State's interest in "responsible procreation' by opposite-sex couples"); In re Kandu, 315 B.R. 123, 145 (Bankr. W.D. Wash. 2004) (referring to the government's interest in traditional marriage as the ideal setting for procreation).

n18. Lewis, 908 A.2d at 222.

n19. Id. at 225 (Poritz, C. J., concurring and dissenting). Page 17 59 Rutgers L. Rev. 233, *264

n20. Id. at 225-26.

n21. Id. at 231 (quoting Ronald Dworkin, Three Questions for America, N.Y. Rev. Books., Sept. 21, 2006, at 24, 30.).

n22. Joseph Raz, The Morality of Freedom 162 (1986).

n23. Lewis, 908 A.2d at 225-31 (Poritz, C.J., concurring and dissenting).

n24. Id., at 230.

n25. Id. (quoting Gregory N. Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, 61 Am. Psych. 607, 611 (2006)).

n26. Id. (quoting Herek, supra note 25, at 613 (emphasis added)). The minority did not say what "otherwise comparable parents" means. Most people probably believe that no opposite-sex couples are "comparable" to homosexual couples. In any case, "comparable parents" clearly does not include married opposite-sex couples raising their own biological children. See infra Part IV. Thus the statement is meaningless.

n27. Id. at 206.

n28. Id.

n29. Id. at 227 (Poritz, C.J., concurring and dissenting) (quoting id. at 206). Page 18 59 Rutgers L. Rev. 233, *264

n30. Id. at 228.

n31. 388 U.S. 1 (1967). For further discussion of Loving see infra notes 120-23 and accompanying text.

n32. Lewis, 908 A.2d at 228 (Poritz, C.J., concurring and dissenting).

n33. See Monte Neil Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, 1 Duke J. Const. L. & Pub. Pol'y 1, 7, 28-60 (2006) [hereinafter "Stewart, Genderless Marriage"]; see generally Monte Neil Stewart, Eliding in New York, 1 Duke J. Const. L. & Pub. Pol'y 221 (2006).

n34. Lewis, 908 A.2d at 217.

n35. Stephen L. Carter, Liberal Hegemony and Religious Resistance: An Essay on Legal Theory, in Christian Perspectives on Legal Thought 25, 47 (Michael W. McConnell, et al. eds., 2001).

n36. See generally Linda J. Waite & Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier, and Better-Off Financially (2000).

n37. George A. Akerlof, Men Without Children, 108 Econ. J. 287, 296 (1998). The rate of imprisonment for single young men is almost six times that for married young men. Id. Misbehavior by men may have a genetic basis. See Natalie Angier, Parental Origins of Chromosome May Determine Social Graces, Scientists Say, N.Y. Times, June 12, 1997, at A2 (reporting a study finding that girls lacking an X chromosome from their fathers were more antisocial; this suggests that males may be more antisocial than females because they get a Y chromosome, rather than an X chromosome, from their fathers). That would suggest the desirability of promoting social institutions that curb such behavior in men. Page 19 59 Rutgers L. Rev. 233, *264

n38. See Akerlof, supra note 37, at 287; Steven L. Nock, The Consequences of Premarital Fatherhood, 63 Am. Soc. Rev. 250 (1998).

n39. See W. Bradford Wilcox et al., Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences 19-22 (2d ed. 2005) [hereinafter Why Marriage Matters]; Nock supra note 38.

n40. See id.; Marsha Garrison, Marriage Matters: What's Wrong with the ALI's Domestic Partnership Proposal, in Reconceiving the Family: Critique on the American Law Institute's Principles of the Law of Family Dissolution 305, 324 (Robin Fretwell Wilson ed., 2006) [hereinafter Reconceiving the Family] (citing several studies and concluding that "some, as yet undetermined, fraction of the marital "premium' stems from marriage itself").

n41. See infra notes 100, 109 and accompanying text.

n42. See infra notes 101-66 and accompanying text.

n43. See Martha Fineman, The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies (1995); Catherine A. MacKinnon, Feminism Unmodified 32-45 (1987); Davina Cooper, Like Counting Stars?: Re-Structuring Equality and the Socio-Legal Space of Same-Sex Marriage, in Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law 75, 75 (Robert Wintemute & Mads Andenaes eds., 2001) [hereinafter Legal Recognition] (alleging "the historically patriarchal function and property associations of marriage... ."); Paula Ettelbrick, Since When Is Marriage a Path to Liberation?, in Same-Sex Marriage: The Moral and Legal Debate 164 (Robert M Baird & Stuart E. Rosenbaum eds., 1997).

n44. W. Bradford Wilcox, Family Ties, Pub. Interest, Fall 2003, at 115, 117.

n45. See generally Why Marriage Matters, supra note 39.

n46. " The emotional support furnished by most marriages reduces stress, and the stress hormones, that often cause ill health and mental illness." Witherspoon Inst., Marriage and the Public Good: Ten Principles 20 (2006) [hereinafter Marriage and the Public Good] (citing Waite & Gallagher, supra note 36). See also Hara Estroff Marano, Debunking the Marriage Myth: It Works for Women, Too, N.Y. Times, Page 20 59 Rutgers L. Rev. 233, *264

Aug. 4, 1998, at F1 (citing findings that for both men and women marriage "lengthens life, substantially boosts emotional health and raises income over that of single or divorced people or those who live together); Marriage Dividend, Bus. Wk., Oct. 6, 2003, at 158 (citing recent study of older women showing that married women enjoy better health than single women). These effects are found in many countries. See generally Steven Stack & J. Ross Eshleman, Marital Status and Happiness: A 17-Nation Study, 60 J. Marriage & Fam. 527 (1998); Ed Diener et al., Similarity of the Relations Between Marital Status and Subjective Well-Being Across Cultures, 31 J. Cross-Cultural Psych. 419 (2000) (finding that positive effects of marriage accrued equally to both sexes and were "very similar" across the world).

n47. See Ronet Bachman & Linda E. Saltzman, U.S. Dep't of Justice, Bureau of Justice Statistics, Violence Against Women: Estimates From the Redesigned Survey 4 (1995)(finding that never married and divorced women are four times more likely than married women to be victims of a violent crime).

n48. Wilcox, supra note 44, at 116.

n49. Id. at 116-17.

n50. Lewis v. Harris, 908 A.2d 196, 201-02 (N.J. 2006); id. at 230 (Poritz, C.J., concurring and dissenting). However, the court also noted that the legislature has not made domestic partnership couples equal to married couples in adoption. Id. at 215-16; id. at 226-27 (Poritz, C.J., concurring and dissenting).

n51. Dating at least to Plato there have also been proposals that children should be raised by adults chosen by the state, often in communal nurseries. However, programs implementing these proposals have invariably failed. Even the best such effort - communal child care in Israeli kibbutzim - has been largely abandoned in favor care by natural parents. See Karl Zinmeister, Actually, Villages Are Lousy at Raising Pre-School Children, American Enterprise, May/June 1996, at 53, 54 (in nearly all kibbutzim, "infant care has been shifted back to parents").

n52. See Garrison, supra note 40, at 324-26 (citing dozens of studies and concluding that "marriage is also associated with important advantages to children"); Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married , and Single-Parent Families, 65 J. Marriage & Fam. 876, 885 (2003) (children living with their two biological married parents "generally fare better than teenagers living in any other family type"); Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children, Research Brief 6 (June 2002) ("the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage"); Blain Hardin, 2-Parent Families Rise After Change in Welfare Laws, N.Y. Times, Aug. 12, 2001, at A1 ("a powerful consensus has emerged in recent years among social scientists... . From a child's point of view, according to a growing body of social research, the most supportive household is one with two biological parents in a low-conflict marriage."). Page 21 59 Rutgers L. Rev. 233, *264

n53. Kyle Pruett, Fatherneed 207 (2000); see also David Popenoe, Life Without Father (1996).

n54. Daniel Cere, War of the Ring, in Divorcing Marriage: Unveiling the Dangers in Canada's New Social Experiment 9, 11 (Daniel Cere & Douglas Farrow eds., 2004). See also Margaret Somerville, What About the Children?, Divorcing Marriage: Unveiling the Dangers in Canada's New Social Experiment 67.

n55. The ability of such couples to marry is sometimes cited as evidence of the irrationality behind refusing to recognize SSM. See Hernandez v. Robles, 855 N.E.2d 1, 26 (N.Y. 2006) (Kaye, C.J., dissenting) ("the ability or desire to procreate is not a prerequisite for marriage. The elderly are permitted to marry... ."). As the majority in Hernandez recognized, though, "limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary unreliable line-drawing." Id. at 11-12 (opinion of the court). See also George W. Dent, Jr., Traditional Marriage: Still Worth Defending, 18 BYU J. Pub. L. 419, 432 (2003) (explaining reasons for treating same-sex couples differently from infertile heterosexual couples). The law routinely lays down general rules rather than making individualized determinations, such as using age to determine when one is mature enough to marry, to vote, or to drive a car. As a result, "legal categories are almost always somewhat over-or under-inclusive." Andrew Koppelman, Is It Fair to Give Religion Special Treatment?, 2006 Ill. L. Rev. 571, 597 (2006).

n56. Lewis v. Harris, 908 A.2d 196, 230 (N.J. 2006) (Poritz, C.J., dissenting).

n57. Id. (emphasis added)

n58. See supra note 52.

n59. See Lynn D. Wardle, Considering the Impacts on Children and Society of "Lesbigay" Parenting, 23 Quinnipiac L. Rev. 541, 550 (2004) [hereinafter Wardle, Considering the Impacts]; Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L. Rev. 833, 897 (1997) [hereinafter Wardle, Potential Impact].

n60. See supra note 26 and accompanying text. Page 22 59 Rutgers L. Rev. 233, *264

n61. See Bruce Ellis, Of Fathers and Pheromones: Implications of Cohabitation for Daughters' Pubertal Timing, in Just Living Together: Implications of Cohabitation on Families, Children, and Social Policy 161 (A. Booth & A. Crouter eds., 2002).

n62. See Wardle, Potential Impact, supra note 59, at 853-55; Wardle, Considering the Impacts, supra note 59, at 550, 559. Such a correlation would not be surprising because every theory of sexual development recognizes that it is influenced by the behavior of one's parents. See id.

n63. See generally Steven Pinker, The Blank Slate: The Modern Denial of Human Nature 343-50 (2002); David C. Geary, Male, Female: The Evolution of Human Sex Differences (1998).

n64. Marriage and the Public Good, supra note 46, at 18.

n65. See generally Eleanor E. Maccoby, The Two Sexes: Growing Up Apart, Coming Together (1998).

n66. See Wade Horn & Tom Sylvester, Father Facts 153 (2002); Popenoe, supra note 53; Thomas G. Powers et al., Compliance and Self-Assertion: Young Children's Responses to Mothers Versus Fathers, 30 Developmental Psych. 980 (1994).

n67. See Pruett, supra note 53, at 30-31; Popenoe, supra note 53, at 144-45.

n68. See Robin Fretwell Wilson, Undeserved Trust: Reflections on the ALI's Treatment of De Facto Parents, in Reconceiving the Family, supra note 40, at 90, 106-10.

n69. See supra notes 53-54 and accompanying text.

n70. See Barbara Dafoe Whitehead, Answered Prayers: Where Is Technological Reproduction Taking Us?, Commonweal, Oct. 20, 2006 at Page 23 59 Rutgers L. Rev. 233, *264

133 (citing study finding widespread identity problems among such children). See also supra note 54.

n71. Elizabeth Marquardt, The Revolution in Parenthood: The Emerging Global Clash Between Adult Rights and Children's Needs 17 (Inst. for American Values 2006) (footnote omitted).

n72. See Linda C. McClain, Deliberative Democracy, Overlapping Consensus, and Same-Sex Marriage, 66 Fordham L. Rev. 1241, 1251 (1998) ("The requirements of public reason would ... require the delineation of precisely how same-sex marriages threaten the institution of marriage in terms of public reasons and political values implicit in our public culture.").

n73. Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006).

n74. Id. at 225 (Poritz, C.J., concurring and dissenting).

n75. " Cultures and religions throughout history have recognized various forms of marriage. Same-sex marriage has not been one of them." Steven F. Noll, Two Sexes, One Flesh: Why the Church Cannot Bless Same-Sex Marriage 41 (1997). See also George W. Dent, Jr., The Defense of Traditional Marriage, 4 Va. J.L. & Pol. 581, 584 n.9 (1999).

n76. Daniel C. Dennett, Darwin's Dangerous Idea: Evolution and the Meanings of Life 487 (1995).

n77. Oliver Wendell Holmes, The Common Law 1 (1881).

n78. Christine Pierce, Gay Marriage, 26 J. Soc. Phil. 5, 10 (1995).

n79. See infra notes 115-16, 150-55 and accompanying text. Page 24 59 Rutgers L. Rev. 233, *264

n80. Cass R. Sunstein, Hazardous Heuristics, 70 U. Chi. L. Rev. 751, 759 (2003).

n81. Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law, 102 Mich. L. Rev. 71, 79 (2003).

n82. See Joan Acocella, Little People, The New Yorker, Aug. 18, 2003, at 138, 139.

n83. Amy L. Wax, Traditionalism, Pluralism, and Same-Sex Marriage, 59 Rutgers L. Rev. 375, 388 (2007) (emphasis added).

n84. See generally Lorraine Blackman et al., The Consequences of Marriage for African Americans: A Comprehensive Literature Review (2005).

n85. Adam Thoms & Isabel Sawhill, For Love and Money? The Impact of Family Structure on Family Income, 15 Future of the Fam. 57, 65 (2005).

n86. F. Scott Fitzgerald, The Great Gatsby 180-81 (Scribner Library ed. 1925).

n87. See generally Kay S. Hymowitz, Marriage and Caste in America (2006).

n88. See Carl E. Schneider, Afterword: Elite Principle: The ALI Proposals and the Politics of Law Reform, in Reconceiving the Family, supra note 40, at 489, 489. Professor Schneider puts this phenomenon in the context of "the ideological evolution of the academic left" from "allegiance to the working class, unions, and the poor ... toward what are loosely called identity politics." Id. at 492. In her excellent contribution to this Symposium, Professor Wax refers to this elite as the "liberal intelligentsia." Wax, supra note 83, at 376. Page 25 59 Rutgers L. Rev. 233, *264

n89. The precautionary principle holds: "Avoid steps that will create a risk of harm... . In a catchphrase: Better safe than sorry." Cass R. Sunstein, Beyond the Precautionary Principle 2 (John M. Olin Law & Economics Working Paper No. 149, 2003), available at http://ssrn.com/abstract=307098.

n90. See supra notes 14-17 and accompanying text.

n91. See Gary J. Simson, Beyond Interstate Recognition in the Same-Sex Marriage Debate 40 U.C. Davis L. Rev. 313, 367 (2006) (citing Adams v. Howerton, 486 F. Supp. 1119, 1123-25 (C.D. Cal. 1980), aff'd, 673 F.2d 1036 (9th Cir. 1982)).

n92. Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J. 33, 44 (2004) (emphasis added). See also Can Government Strengthen Marriage?, infra note 128, at 9 ("The goal of marriage law ... is to increase the proportion of children who are raised by their own two married parents in low-conflict marriages."); id. at 7 (referring to marriage as society's "way of linking the rights and responsibilities of mothers and fathers to each other and to the children they share").

n93. See James Alm & Leslie A. Whittington, For Love or Money? The Impact of Taxes on Marriage, 66 Economica 297, 299 (1999) (stating that the marriage penalty tax reduces the rate of marriage); Richard L. Elbert, Love, God, and Country: Religious Freedom and the Marriage Penalty Tax, 5 Seton Hall Const. L.J. 1171, 1174-85 (1995) (describing history and status of the penalty); C. Eugene Steurle, Valuing Marital Commitment: The Radical Restructuring of Our Tax and Transfer Systems, 9 Responsive Comm. 35, 35 (1999) (finding "an extraordinary array of marriage [tax] penalties").

n94. As Professor Patricia Robertson of the UCSF Medical Center notes:

Gay and lesbian relationships have not been as financially intertwined as marriage historically... . For a lot of LGBT (lesbian, gay, bisexual, and transgender) people, being independent financially is an important part of who they are ... . To be told by the law that their financial relationship is now expected to mimic that of a married couple is unknown territory.

Rona Marech, Gays Cautious About New Partners Law: Some Opt Out, Fearing Legal or Financial Troubles, S.F. Chronicle, Sept. 20, 2004, at A1. See also Kara S. Suffredini & Madeleine V. Findley, Speak Now: Progressive Considerations on the Advent of Civil Marriage for Same-Sex Couples, 45 B.C. L. Rev. 595, 613-14 (2004) ("to the extent that the availability of same-sex marriage may result in a reduction of recognition for diverse forms of partnership and households, LGBT families that do not fit the traditional marriage model may not benefit and may even be harmed"). Page 26 59 Rutgers L. Rev. 233, *264

n95. Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903, 953 (1996).

n96. Schneider, supra note 88, at 502.

n97. Scott FitzGibbon, A City without Duty, Fault, or Shame, in Reconceiving the Family, supra note 40, at 28, 42. See also Marriage and the Public Good, supra note 46, at 6 ("Creating a marriage culture is not the job for government... .But law and public policy will either reinforce and support these goals or undermine them.").

n98. See generally Carol Weisbrod, On the Expressive Functions of Family Law, 22 U.C. Davis L. Rev. 991 (1989).

n99. See supra notes 19-21 and accompanying text; see also Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-Community Critique, 21 N.Y.U. Rev. L. & Soc. Change 567, 580 (1994-95) (referring to "marriage's central symbolic importance in our society and culture" and the "transformative potential of [gay people's] right to marry"); E.J. Graff, Retying the Knot, 262 The Nation 12 (June 24, 1996) ("Marriage is an institution that towers on our social horizon, defining how we think about one another.").

n100. William N. Eskridge, Jr., The Case for Same-Sex Marriage 84 (1996). See also Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America 19-21 (2004).

n101. Lewis v. Harris, 908 A.2d 196, 218 (N.J. 2006).

n102. See Maggie Gallagher & Joshua K. Baker, Demand for Same-Sex Marriage: Evidence from the United States, Canada, and Europe, 3 iMAPP Policy Brief No. 1, 1, 6 (Apr. 26, 2006), available at http://www.imapp.org.

n103. Id. at 2. Page 27 59 Rutgers L. Rev. 233, *264

n104. See Dennis Altman, The Homosexualization of America: The Americanization of the Homosexual 187 (1982) ("Among gay men a long-lasting monogamous relationship is almost unknown."); Maria Xiridou et al., The Contribution of Steady and Casual Partnerships to the Incidence of HIV Infection Among Homosexual Men in Amsterdam, 17 AIDS 1029, 1031 (2003) (finding among a sample of Amsterdam men that gay male partnerships lasted on average 1.5 years and that men in these partnerships had an average of eight casual partners per year); see also Craig W. Christensen, If Not Marriage? On Securing Gay and Lesbian Family Values by a "Simulacrum of Marriage," 66 Fordham L. Rev. 1699, 1726 (1998) (conceding that marriage may not have "the same meaning - entailing commitment to the same values - for gay people as for their heterosexual counterparts").

n105. See Kimberly Blanton, Unmarried Gay Couples Lose Health Benefits, Boston Globe, Dec. 8, 2004, at A1.

n106. See Kathleen E. Hull, Same-Sex Marriage: The Cultural Politics of Love and Law 78 (2006); Claudia Card, Against Marriage, in Same-Sex Marriage: Debating the Ethics, Science, and Culture of Homosexuality 317, 321 (John Corvino ed., 1997); Ettelbrick, supra note 43; Anemona Hartocollis, For Some Gays, a Right They Can Forsake, N.Y. Times, July 30, 2006, §9, at 2.

n107. See George Gilder, Men and Marriage 12-18 (1993); Richard A. Posner, Sex and Reason 312 (1992) (stating that the presence of children helps to keep married couples together).

n108. See supra note 93 and accompanying text.

n109. Lewis v. Harris, 908 A.2d 196, 225 (N.J. 2006) (Poritz, C.J., concurring and dissenting); see also supra note 99 and accompanying text.

n110. See One of Lincoln's Jokes, N.Y. Times, Feb. 16, 1891, at 5; William Safire, Essay, Calling a Tail a Leg, N.Y. Times, Feb. 22, 1993, at A17.

n111. See Stewart, Genderless Marriage, supra note 33, at 26 ("It is not possible in reality for same-sex couples to enter the privileged and vital institution previously enjoyed only by opposite-sex couples. The very act of legal redefinition will radically transform the old institution and make it into a profoundly different institution, one whose meanings, value, and vitality are speculative.") Page 28 59 Rutgers L. Rev. 233, *264

n112. However, it is not clear that the change would be in the direction of higher regard for SSM; it might be lower regard for all marriage. See infra notes 164-65 and accompanying text.

n113. See W. Bradford Wilcox & Steven L. Nock, What's Love Got to Do With It? Equality, Equity, Gender, and Women's Marital Happiness, 84 Soc. Forces 1321 (2006); Vaughn R.A. Call & Tim B. Heaton, Religious Influence on Marital Stability, 36 J. Scientific Study of Religion 382 (1997).

n114. See David Shiflett, Exodus: Why Americans Are Fleeing Liberal Churches for Conservative Christianity (2005)

n115. See Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972) (disapproving laws "imposing disabilities on the illegitimate child").

n116. Between 1960 and 2004 the percentage of children born out of wedlock rose from 5.3 to 35.7 percent. Barbara Dafoe Whitehead & David Popenoe, The State of Our Unions, The Social Health of Marriage in America 37 (2006). The rate reached 37 percent in 2005. Babies Born To Singles Are at Record: Nearly 4 in 10, N.Y. Times, Nov. 22, 2006, at A19.

n117. See Whitehead & Popenoe, supra note 116, at 33-34.

n118. See infra notes 139, 148-49, 164 and accompanying text.

n119. See supra notes 19-21 and accompanying text.

n120. 388 U.S. 1 (1967). Page 29 59 Rutgers L. Rev. 233, *264

n121. Judaism forbids marriage outside the faith, but the bar is not based on race; anyone can become a Jew. In Jewish law intermarriage of a non-Jew to a Jew is "prohibited and invalid." 12 Encyclopaedia Judaica 168 (1971). However, "marriages in which a partner has converted to the faith of the other are not considered intermarriages." Id. at 164. Christianity not only accepted interracial marriages but condemned racism. As St. Paul said, in Christianity "there is neither Greek nor Jew, ... Barbarian, Scythian, bond nor free: but Christ is all, and in all." Colossians 3:11.

n122. See Lewis v. Harris, 908 A.2d 196, 228 (N.J. 2006) (Poritz, C.J., concurring and dissenting).

n123. U.S. Const. amend. XXI, §1. The 21st Amendment was adopted in 1933, just fourteen years after the institution of Prohibition by the 18th Amendment.

n124. Hadley Arkes, The Closet Straight, Nat'l rev., July 5, 1993, at 43, 45.

n125. James Q. Wilson, Against Homosexual Marriage, Commentary, Mar., 1996, at 34, 36 (quoting Kenneth Minogue, Book Review, A Politics of Homosexuality, Nat'l Rev, Nov. 27, 1995, at 62, 64).

n126. Andrew Sullivan, Virtually Normal: An Argument About Homosexuality 112, 179 (1995).

n127. See supra note 3 and accompanying text.

n128. Inst. for Am. Values, Can Government Strengthen Marriage?: Evidence from the Social Sciences 9 (2004) [hereinafter Can Government Strengthen Marriage?].

n129. Id. Page 30 59 Rutgers L. Rev. 233, *264

n130. Schneider, supra note 88, at 505.

n131. Kath Weston, Families We Choose: Lesbians, Gays, Kinship 206 (1991).

n132. Schneider, supra note 88, at 505.

n133. Id.at 506.

n134. Can Government Strengthen Marriage?, supra note 128, at 9 (emphasis omitted).

n135. Id. at 11.

n136. Id. at 13.

n137. Id. at 10.

n138. See supra note 106 and accompanying text.

n139. See Michaelangelo Signorile, Bridal Wave, Out, Dec.-Jan., 1994, at 161 (calling traditional marriage "an archaic institution"). Page 31 59 Rutgers L. Rev. 233, *264

n140. Wilcox, supra note 44, at 118 (summarizing a theme from Brigitte Berger, The Family in the Modern Age: More Than a Lifestyle Choice (2003)).

n141. " The cost of having children has risen much faster than the cost of being childless." James Surowicki, Leave No Parent Behind, The New Yorker, Aug. 18 & 25, 2003, at 48.

n142. See supra Part IV.

n143. See, e.g., David L. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L. Rev. 447, 491 (1996).

n144. Lewis v. Harris, 908 A.2d 196, 228 (N.J. 2006) (Poritz, C.J., concurring and dissenting).

n145. In non-Western societies polygamy is the norm. See Posner, supra note 107, at 69. In Europe endogamy was only slowly suppressed after Christianity became dominant. See Jack Goody, The Development of the Family and Marriage in Europe 31-33 (1983). Endogamy is quite natural. Freud considered the prohibition on incest "perhaps the most drastic mutilation which man's erotic life has in all time experienced." Sigmund Freud, Civilization and Its Discontents 51 (James Strachey trans., 1961).

n146. Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families & Relationships 2 (July 26, 2006) (mission statement).

n147. 539 U.S. 558 (2003).

n148. See Brett H. McDonnell, Is Incest Next?, 10 Cardozo Women's L.J. 337, 359 (2004) ("I find something unseemly about the efforts of many gays to deny the analogy [between anti-sodomy and anti-incest laws]. They are a group of people who have gained their own liberty Page 32 59 Rutgers L. Rev. 233, *264

paying scant heed to the liberty of others.").

n149. See Fineman, supra note 43, at 228 ("we should abolish marriage as a legal category"); Martha M. Ertman, Marriage as a Trade: Bridging the Private/Private Distinction, 26 Harv. C.R.-C.L. Rev. 79 (2001) (arguing for treating personal relationships through contract rules modeled on corporate law); Tamar Lewin, Untying the Knot; For Better Or Worse: Marriage's Stormy Future, N.Y. Times, Nov. 23, 2003, §4, at 1 ("The most radical structural change being discussed these days is taking the state out of the marriage business.").

n150. See Jane Lewis, The End of Marriage? Individualism and Intimate Relations 5 (2001).

n151. See id.

n152. See id. at 4 ("in one generation, ... the numbers divorcing have trebled"); Stewart, Genderless Marriage, supra note 33, at 68 n.184 (stating that from 1965 to 1985 the American divorce rate went from 10.6 to 21.7 per thousand married women).

n153. See Margaret F. Brinig, From Contract to Covenant: Beyond the Law and Economics of the Family 174-77 (2000); Elizabeth Marquardt, Between Two Worlds: The Inner Lives of Children of Divorce (2005); Judith S. Wallerstein et al., The Unexpected Legacy of Divorce: A Twenty-Five Year Landmark Study (2000); Barbara Dafoe Whitehead, The Divorce Culture: Rethinking Our Commitments to Marriage and the Family (1996).

n154. See generally Leonore J. Weitzman, The Divorce Revolution (1985).

n155. See Marriage and the Public Good, supra note 46, at 25.

n156. See supra notes 102-03 and accompanying text. Page 33 59 Rutgers L. Rev. 233, *264

n157. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003).

n158. See supra note 104 and accompanying text.

n159. See supra note 104. See also David P. McWhirter & Andrew M. Mattison, The Male Couple: How Relationships Develop 285 (1984) (of 156 males in relationships lasting one to 37 years only seven couples considered themselves to have been consistently mongamous; couples were more likely to stay together if they were not sexually exclusive).

n160. See Posner, supra note 107, at 312 (stating that the presence of children tends to keep married couples together).

n161. See supra note 104 and accompanying text.

n162. See Linda C. McClain, The Evolution - Or End - of Marriage?: Reflections on the Impasse Over Same-Sex Marriage, 44 Fam. Ct. Rev. 200, 200 (2006) (arguing that recognition of SSM would be "preservative - rather than destructive - of the civil purposes of marriage").

n163. See Sullivan, supra note 126, at 112 (claiming that recognition of SSM might even "buttress the ethic of heterosexual marriage, by showing how even those excluded from it can wish to model themselves on its shape and structure").

n164. See Nan D. Hunter, Marriage, Law and Gender: A Feminist Inquiry, 1 Law & Sexuality Rev. 9, 12 (1991) (stating that recognizing SSM could "destabilize the gendered definition of marriage"); Janet Halley, Recognition, Rights, Regulation, Normalisation: Rhetorics of Justification in the Same-Sex Marriage Debate, in Legal Recognition, supra note 43 at 97, 101 ("marriage might become less, not more meaningful").

n165. See supra notes 102-04 and accompanying text. Page 34 59 Rutgers L. Rev. 233, *264

n166. See generally Whitehead, supra note 153 (arguing that the liberalization of divorce has already had this effect).

n167. Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006).

n168. Id. at 222.

n169. Id. at 224; see also id. at 226 (Poritz, C.J., concurring and dissenting).

n170. Id. at 222 (Albin, J., majority). The minority also noted the "intensity of meaning" for the institution of marriage. Id. at 231 (Poritz, C.J., concurring and dissenting) (quoting Dworkin, supra note 21, at 30).

n171. Id. at 227 (Poritz, C.J., concurring and dissenting) (quoting Michael Wald, Same-Sex Couple Marriage: A Family Policy Perspective, 9 Va. J. Soc. Pol'y & L. 291, 338 (2001)).

n172. Some advocates of SSM predict such an effect. See Halley, supra note 164, at 103 (stating that legal recognition of domestic partnerships, "when it is equally available to cross-sex and same-sex couples, may render marriage a little bit less paradigmatic").

n173. Can Government Strengthen Marriage?, supra note 128, at 9.

n174. N.J. Stat. Ann. 26:8A-4(b)(5) (West 2006).

n175. Lewis, 908 A.2d at 212. Page 35 59 Rutgers L. Rev. 233, *264

n176. See Chris Crain, Editorial, Gays May Ruin "Traditional Marriage," N.Y. Blade, Aug. 3, 2001, at 14 ("The effect on "traditional marriage" has been dramatic. In France, where [domestic partnerships] first became available in 1999, some 14,000 couples signed up the first year, and almost half of them heterosexual."); Molly Moore, More Longtime Couples in France Prefer L'Amour Without Marriage, Wash. Post, Nov. 21, 2006, at A22 ("French marriage rates are 45 percent below U.S. figures... . Last year, 59 percent of all first-born French children were born to unwed parents... ."). Sweden is witnessing what some are calling "the end of marriage." See Stanley Kurtz, The End of Marriage in Scandinavia, Wkly. Std., Feb. 2, 2004.

n177. See Lewis, 908 A.2d at 209.

n178. Id. at 215.

n179. Id. at 224.

n180. Karl Marx made famous the principle, "From each according to his abilities, to each according to his needs." Karl Marx, Critique of the Gotha Programme 8-10 (C.P. Dutt ed., International Publishers 1977) (1875). The phrase has earlier origins, though precisely what they are is a subject of dispute. See The Oxford Dictionary of Quotations 452 (4th ed. 1992).

n181. Can Government Strengthen Marriage?, supra note 128, at 9.

n182. Lewis, 908 A.2d at 224.

n183. Even some liberal scholars reject the principle of absolute judicial supremacy in constitutional interpretation. See Mark Tushnet, Taking the Constitution Away From the Courts 129-76 (1999); Michael J. Perry, The Fourteenth Amendment, Same-Sex Unions, and the Supreme Court, 38 Loyola U. Chi. L.J. 101, 101-02 (2006). Page 36 59 Rutgers L. Rev. 233, *264

n184. See David W. Chen, In Trenton, A Move to Define Marriage, N.Y. Times, Nov. 28, 2006, at B5.