Left-wing indignations are on a collision course. It’s not clear right now whether the smackdown will involve an actual court case featuring Same-Sex and Anchor Baby. That denouement is for the hazy future. But the ring is being set up, the challenges issued to the fighters, and the tickets being sold for an epic confrontation in the WCW of public opinion. We’ll know after the Prop. 8 challenge wends its way to the Supreme Court (assuming it does) if … It’s ON.
The defense of Prop. 8 could have been argued on more than one premise. One would have been the point I return to often: that proclaiming a “right” to same-sex marriage is actually redefining marriage, and the Constitution doesn’t say anywhere that the people aren’t authorized to supervise and determine the outcome of that process. (As originalists would point out, the 9th and 10th amendments explicitly reserve authority of exactly that sort to the states and the people.)
But the defense team chose instead to focus on the issue of traditional marriage as the optimum organization for child rearing. This has been emotionally problematic for a lot of people who oppose redefining marriage, but who don’t harbor an animus against the individuals who are raising children in various situations other than traditional marriage. What many of them see is that there is no value – but much harm – in the state intervening to strike attitudes about these things, in effect trying to shape social choices rather than merely recognize them.
Ed Morrissey wrote about this not long ago, positing that perhaps we should simply dispense with the state recognizing marriage. But if we think that through, what we come up against is the underlying reason why the Prop. 8 defense team argued its case on the basis of child rearing. Traditional male-female marriage is not just normal – it’s been the indisputable norm throughout history; no society has ever called same-sex unions “marriage” – it’s the only form of social connection that produces children and rears them to adulthood entirely without the policy intervention of the state.
Every other organization to rear children involves the state in one way or another. Same-sex couples can’t conceive and bear their own children without opposite-sex cooperation. The cases in which this assistance does not involve any practice regulated or overseen by the state are exceedingly rare. Even when state-regulated services aren’t used up-front, lawsuits can still be brought if any one of the parties is unhappy with the outcome. The state assumes a government interest, whether the issue is breach of contract or birth-parent rights.
Adoptions are regulated a priori by the state. Divorce entails state intervention between parents and children whenever custody, visitation, and child support are at issue. Single motherhood is a pattern that, regardless of income level, has encouraged the state to develop and enforce policies on child-rearing, whether the issue is day care, health insurance, or youth programs to counteract the ill effects of zero fatherhood. Welfare mothers, of course, receive the ministrations of the state authorities on principle.
Only the traditional male-female family can produce its own children and rear them without recourse to state policies, or to the state guarantees that have been instituted to act as surrogates for the self-sustaining “nuclear family.”
Because this is human nature’s core grouping, and history has proven it to be the most economically powerful and flexible one, it has been natural for the state to recognize it over the centuries. The state didn’t set it up; the state recognizes its prior claims. One of its principal features, for the state’s purposes, is that it is the situation for children in which they are not assumed to need rescue or preemptive surveillance by the state. The state’s presumption today is still in favor of the nuclear traditional family rearing its natural children.
The most basic thing this means is that it is assumed that married birth parents will keep and rear their own children. There are no other choices on a state form that anyone’s going to ask married birth parents to check. The social importance of birth parenthood within traditional marriage is still extremely powerful, when it comes to whether we agree the state has any right to intervene, or to sit around and think up what-if policies.
That is why there even is such a thing as an “anchor baby.” Because we assume the prior, unalienable rights of birth parents, and we assume they trump other things, whether social or legal. We do this for a few very basic reasons, premised on our most enduring social assumptions. But according to the plaintiffs against Prop. 8, the state should see no difference – none that affects its policies or society’s interests – between one form of parenthood versus another.
The effect of this will not be to privilege state-brokered parenthood to the same level as birth parenthood. That’s not even possible. It will instead be to subject birth parenthood to the same presumption of state authority as state-brokered parenthood, even within traditional marriages that are intact. And if parental rights are conferred at the discretion of the state, rather than preexisting and binding the state, then in this smackdown, it’s Anchor Baby who will eventually be lying in an artistic heap on the mat, and Same-Sex who will be walking the victory lap with his arms aloft.
As always, women and minorities – and children – will be hardest hit.
Cross-posted at Hot Air.