California, always on the cutting edge, is about to fall into the kind of malicious mischief that gives the state its well-deserved reputation as the biggest outpatient center for crazy conservatives in the country.
This time, however, these mischief mongers may have been, as the British put it, too clever by half.
Californians will be asked in March to vote on a ballot initiative that would add this provision to the California Family Code: "Only a marriage between a man and a woman shall be valid or recognized." These are the only marriages now legal in California. Backers of the initiative, sponsored by state Sen. Pete Knight (R), say its purpose is to prevent California from recognizing marriages of same-sex couples that were entered into legally in other states. Right now it's a moot point: No state recognizes same-sex marriages.
However, Vermont's Supreme Court opened the way for just that Monday when it said same-sex couples must be afforded the equal protections given heterosexual married couples. That means Vermont's legislature must consider either allowing same-sex marriages or setting up a legal system of domestic partnership.
In California, the Knight Initiative has occasioned a fascinating report on same-sex partners, how they raise their children and how children fare growing up in these households. The report (available at www.lawschool.stanford. edu/faculty/wald/), was written by Michael Wald, the Jackson Eli Reynolds professor of law at Stanford University, and is the first to offer a comprehensive analysis of the arguments for and against the initiative and to analyze its legal implications.
What emerges is the most vigorous and compassionate argument on behalf of gay marriages that I have ever read. Central to his argument is that marriage, with its legal, moral and economic obligations, is more beneficial to the children involved than relationships not sanctioned by marriage.
The traditional picture of the childless gay couple is no longer the rule. Artificial insemination has enabled lesbian couples to have children. Gay men in couples also are raising children born from first marriages or who have been adopted. There are an estimated 400,000 same-sex couples in California, and many have children.
Wald has examined the large body of research that now exists on same-sex couples and their children. Contrary to popular perception as well as claims of initiative backers, these relationships don't crash and burn with much more frequency than heterosexual marriages. Same-sex couples "nurture one another in sickness and health, often providing critical support in periods of major illness, benefiting not just the individuals involved but society as a whole," Wald writes. "Moreover recognition of these relationships should contribute to their stability."
The American Psychological Society concluded in 1995 that not "a single study has found children of gay and lesbian parents to be disadvantaged in any significant respect relative to the children of heterosexual parents. Indeed, the evidence suggests that home environments provided by gay and lesbian parents are as likely as those provided by heterosexual parents to support children's psychological growth." Studies examined every aspect of child development, from peer relations to self-esteem to leadership ability and general well-being, and found "children living with gay parents did not look different from their counterparts with heterosexual parents," Wald writes.
Many arguments against gay marriage come out of religious doctrine or plain old homophobia, neither of which should govern public policy. Opponents of same-sex marriages argue that recognizing them would threaten the Institution of Marriage As We Know It, the old Armageddon argument that the tories among us summon forth to beat back social change. Wald notes that these same claims were made by opponents of interracial marriages, which were banned in California until 1948, and by those who opposed making women equal partners in marriages.
The latter did, indeed, change the institution of marriage from one of male economic dominance and female dependence to an economic partnership in which the wife's contribution was equally valued. This has had a profound impact on the nation's 54 million married couples. By comparison, the number of same-sex couples is quite small: the Census Bureau estimated there were 1,674,000 same-sex partnerships in the United States in 1998, with 865,000 being two-male couples, and 809,000 being two-female couples. Roughly a quarter live in California. In that same year, 167,000 gay couples reported that they had children 15 years or younger living with them.
These children, Wald argues, would clearly benefit if their parents could marry and if they could be adopted by the non-biological parent. "This would maximize the stability of the parent-child relationship and better protect children's economic interests," he writes. "The children would be able to see their family as more normal. Their parents' well-being will be improved, which will contribute to their capacity for child-rearing."
The guiding principle in child custody disputes has been the best interests of the child. Backers of the Knight Initiative didn't set out with this goal in mind, but what they have wrought is a persuasive argument on behalf of same-sex marriages, a discussion that will have even more urgency with the Vermont court ruling. It is in the best interest of tens of thousands of children to enable their same-sex parents to marry and give them the economic protections they are entitled to when they have two parents responsible for them, and not just one.