What's the harm, anyway?

John Eastman says strongest case against same-sex ‘marriage’ is natural . . .

John C. Eastman

After nearly a decade of fighting with every branch of their state government over the definition of marriage, Californians finally got their say in 2008 when they approved Prop 8, the voter initiative that restored the traditional definition of marriage to the state’s constitution.

A lawsuit in state court challenging the people’s right to adopt the initiative failed, but then a federal suit challenged traditional marriage as a violation of the Fourteenth Amendment. The proponents of the initiative have had to provide the legal defense on their own because their elected officials — then-Governor Arnold Schwarzenegger and now Governor Jerry Brown — have refused to defend the initiative in court.

A show trial was held, and the federal judge who was assigned the case (and who after the trial admitted to being in a long-term homosexual relationship himself) held that traditional marriage was unconstitutional. The government refused to appeal the ruling, so the official proponents now stand alone in defense of the initiative. On Nov. 17, the state’s high court ruled that the Prop 8 campaign has standing to defend the law, noting that California courts have consistently allowed “official proponents” of an initiative to “to defend a challenged voter-approved initiative measures.”

An interesting question generated some particularly troubling discussion in the trial court’s order. “Just what harm will come to your marriage,” the trial court asked the official proponents, “if same-sex couples are also able to get married?” The U.S. Supreme Court recognized more than a century ago that traditional marriage, consisting of “the union for life of one man and one woman,” is “the sure foundation of all that is stable and noble in our civilization.” It is “one of the cornerstones of our civilized society,” Justice Hugo Black added in 1971. (See related story.)

Since we embraced no-fault divorce in the 1960s, we have witnessed a huge increase in out-of-wedlock births, a huge increase in broken homes, and huge increases in juvenile delinquency, juvenile depression and child poverty. Call me crazy, but these seem to be related. We know, for example, that children raised by both of their biological parents perform better in school and are better prepared for life than kids who are not. By loosening the legal bonds of matrimony, the no-fault divorce movement also weakened the cultural bonds, and it launched a trend that has undermined the institution of marriage and the societal benefits that flow from it. Men are less responsible, women with children are less secure and our kids are worse off. What harm indeed!

Still, the proponents of homosexual “marriage” persist. “If marriage is such a beneficial institution, we should expand it to cover gays and lesbian couples as well,” they argue. Yet what they demand is not a mere expansion, but a fundamental transformation of the institution. No longer would marriage be defined by its primary historical purpose, fostering procreation and rearing of children in a stable familial relationship. Rather, it would now be all about the adults, and the tie between marriage and diapers wouldn’t just be weakened but entirely severed. As Judge Vaughn Walker noted in his ruling holding Prop 8 unconstitutional, gender will no longer be relevant to such an institution, and procreation was never really a part of it anyway. Can it really be so hard to see that such a move would exacerbate the collateral-damage-to-kids trend begun a generation ago? Perhaps even be the nail in the coffin of the once-venerable institution of marriage?

It’s important to note that this defense of traditional marriage is not drawn from biblical injunction, though it certainly coincides with it. Neither is it grounded in “anti-gay bigotry,” an accusation that has been so frequently leveled against the defenders of traditional marriage. One need not wade into the dispute about the morality or immorality of homosexual conduct to recognize, as Chief Justice Margaret Marshall did in her opinion for the Supreme Judicial Court of Massachusetts imposing same-sex “marriage” in that state back in 2003, that the capacity for unassisted procreation is an “unbridgeable difference between same-sex and opposite-sex couples.”

By redefining marriage to bridge that unbridgeable difference, the generative function of marriage will become legally irrelevant, and the social and cultural norms, already on the skids, will not be far behind. It’s hard to imagine a greater harm to society — or one of more lasting consequence.

Dr. John Eastman is a Professor of Law at Chapman University School of Law, the Chairman of the National Organization for Marriage, and a member of Legatus’ Orange County Chapter.