Equality And Matrimony

James D. Standish September/October 2004

One enters the fray of the same-sex marriage debate with trepidation. The principal parties in the debate are so polarized, and the stakes seemingly so high, that anyone game enough to express an opinion either way had best be prepared to bear the brunt of brutal attacks not merely on his position but on his character as well.

It is therefore worth beginning this piece by clearly stating at the outset what the article is, and is not, about. This article is not about rights for homosexuals. Indeed, many of those who oppose redefining marriage to include same-sex relationships are in favor of protections against discrimination on the basis of sexual orientation in the secular workplace and are in favor of the robust enforcement of laws against those who perpetrate hate crimes against the gay community. It is not about whether legislatures can redefine marriage; clearly they can. Further, it is not about stigmatizing or alienating gay Americans. By now most people in America realize that they have friends from high school, college, work, or their neighborhood who are gay, and many of us have family members who are gay.

What this article is about is whether same-sex relationships must be recategorized as "marriage" or not. Or more particularly, whether our concept of equal protection under the law requires such a recategorization.

The Equal Protection Claim

The legal challenges to the definition of marriage as a relationship between a man and a woman are based on the guarantee of equal protection under the law found in the equal protection clause of the federal Constitution and its state corollaries. Equal protection does not mean that everyone is treated the same. Indeed, the legal and legislative systems are set up to ensure that some citizens are treated differently than others. The equal protection principle may best be summed up like this: all citizens must be treated differently in the same manner–as long as the government has a reason to treat them differently.

How good does the government's reason need to be? That depends. Over the years the courts have established a hierarchy of protections depending on the substance of the equal protection challenge. In particular, in cases that involve laws that discriminate on the basis of race or national origin; law that interfere with First Amendment rights and other fundamental rights such as the right to travel and to privacy; and, in some cases laws that classigy based on citizenship status, the courts apply the familiar "strict scrutiny" analysis. That is, they require the government to have "compelling" reasons to treat people differently and to show that the law is necessary to accomplish that compelling interest. The courts apply that it have a rational basis that is tied to a legitimate state interest for making a distinction between citizens.

Some argue that strict scrutiny analysis should be applied to clarifications based on sexual orientation because of the history of discrimination and marginalization of the gay community. To date, this standard has not been applied. The Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, finding that the state's equal protection clause mandates the redefinition of marriage to include same-sex couples, used the rational basis analysis to come to its remarkable decision. Whichever standard is used, however, the case for distinguishing between heterosexual marriage and same-sex relationships is compelling. There are two principal reasons for making this distinction: the disparate impact on children and the disparate impact on the practitioners. Before we get to that question, however, it is worth asking whether the state has a legitimate interest in marriage at all.

State Interest

There is a variety of reasons the state has an interest in marriage. The first, and most obvious, is that marriages produce children. Even after four decades of "sexual revolution," approximately 68 percent of American children are born to married couples. This is down from approximately 95 percent in the 1950s, but still solidly constitutes the norm for our society.

That society has a compelling interest in the birth and nurture of children is obvious on its face. Who will care for us when we're old, who will continue our civilization, who will protect our nation, who will maintain our infrastructure, who will service the national debt? It will be little babies of today. There are few, if any, more pressing interests of society than providing an optimal environment in which our next generation is born and matures. That it turns out that marriage is not only the principal arrangement through which Americans, and virtually every other society throughout recorded history, bring forth and care for our young, but also the best means of doing so (as will be discussed in the next section of this article) only reinforces society's interest in the institution.

In addition to producing and nurturing children, marriage provides a vital stabilizing force for adults (particularly young men), and provides a remarkably strong economic unit. In short, the state has every reason to take an interest in an institution that is vital for the survival of society.

Impact on Children

Some activists have stated that same-sex families are no different than heterosexual families. This claim is problematic on its face. Clearly they are different. The question,therefore, should not be whether they are different, but whether they are different in a manner that should matter when the government is deciding how to treat them.

The most obvious difference between heterosexual couples and same-sex couples is the lack of gender diversity in the latter. The second difference is that heterosexual relationships are capable of producing children. This does not, of course, mean that people involved in same-sex relationships do not have children at home–some do. But the laws of nature still require that every child have a biological mom and dad. Further, as we will discuss, those laws also dictate that a mother and a father are necessary to provide an ideal environment for children to mature.

There is solid evidence that the best environment for children is a unified family in which the mother and father stay together. For example, an Australian study compared the academic performance of children from three types of households: children living with their married parents, children living with an unmarried heterosexual couple, and children living with a homosexual couple. The study found that children from married households outperformed children from unmarried heterosexual households, and that children from both forms of heterosexual households outperformed the children living in homosexual households.

Similarly, a recent study found that teenagers living with their two biological parents have significantly improved mental health and academic achievement, and significantly lower rates of serious behavioral problems at school, compared to teenagers living in single parent households or "blended families." This study was sponsored by the Urban Institute, which has published material in favor of same-sex marriage, but frankly concludes that "the most favorable outcomes we observe are for teenagers living with their biological parents who are married to each other."

The American Psychological Association's Review of General Psychology recently published an article that concludes that there is overwhelming evidence that the love of mothers and the love of fathers differ in significant ways, and that the receipt of both kinds of love is very beneficial to children. Finally, there is evidence that children experience the lowest rates of abuse when they live with their mom and dad.

All of these studies, and many like them, point to the rather unremarkable conclusion that kids do best when they live with their mom and dad. Advocates of same-sex marriage often point out that there are many American families that are deeply dysfunctional or even abusive. This, of course, is nothing new to those who have for decades been decrying the breakdown of the family. Even during this time of almost unimaginable instability in families, however, the mom-and-dad family still outperforms all others. It is time for society to do all that it can to preserve, protect, and advance it rather than taking further steps down the tragic path to family disintegration that we have been on during the past four decades, and that has left so many American children living without their mom or without their dad.

It is worth noting that just because there is overwhelming evidence that, as a rule, children do best when raised with their mom and dad, this does not mean that there is universal agreement on the matter. In fact, some professional associations have adopted positions stating that there is no distinction between parenting arrangements and the environment for children. These positions resemble statements of faith informed by political ideology, rather than informed positions based on the reality children face.

Society has a most compelling interest in the birth and nurture of children. Children do best when they live with their mom and dad. Therefore, society has a compelling interest in promoting families in which moms and dads live together and raise their children. This is accomplished by recognizing and promoting the uniquely beneficial nature of male/female marriage.

Health Impact

The state also has a compelling interest in promoting the health of its citizens. As a rule, homosexuality exerts a serious detrimental impact on the health of its practitioners. According to the International Journal of Epidemiology, participants in the gay lifestyle lose an estimated to 20 years in life span. Homosexuality is associated with a dramatically increased incidence of suicide (a study published in the Archives of General Psychiatry, found that men who had same-sex partners were 6.5 times more likely to commit suicide than those who did not). Homosexuals also suffer from significant increase in liver dysfunction as a result of hepatitis;, high rates of rectal and bowel diseases that cause a wide range of serious health problems; and dramatically increased incidence of a wide variety of sexually transmitted diseases (homosexuals contract syphilis at up to 10 times the rate of heterosexuals; incidence of gonorrhea is estimated to be 3.7 times higher among homosexual males than heterosexual males; and homosexuals experience dramatically increased incidence of HIV/AIDS.

In addition to lower life spans and significantly higher rates of disease, the homosexual lifestyle is associated with significantly higher rates of substance abuse and physical abuse. For example, according to a study published in the Journal of Consulting and Clinical Psychologists, lesbians were more than 2.5 times as likely to engage in heavy drinking as heterosexual women. There is also dramatically increased incidence of physical abuse; male homosexual couples have up to twice the rate of domestic violence of that in the heterosexual population.

In stark contrast, married heterosexual couples experience significant physical and psychological health benefits. The Department of Sociology at Ohio State University provides a comprehensive summary of the relation of heterosexual marriage to mental and physical health. Heterosexual married couples experience significantly better physical and mental health than those involved in cohabitation and those who are single. In addition, married heterosexual couples live longer.

Some have argued that redefining marriage will mitigate the disparate health impacts, and that, further, many of the disparate health impacts are the results of discrimination. This argument is speculative at best. Evidence appears to suggest the contrary–that is, that the negative health impact of the homosexual lifestyle has only increased with the gains made by the gay rights movement over the past four decades, not decreased.
The disparate impact on the health of those engaged in heterosexual and homosexual relationships provides ample rationale for society to distinguish between which lifestyle it will promote through marriage laws.


Equality before the law permits the state to treat citizens differently if it has a legitimate state interest to do so. There is no state interest more compelling than promoting the best conditions to nurture children. Further, the state has a compelling interest in promoting physical and psychological health. In both cases heterosexual marriage provides a uniquely beneficial relational arrangement. The state, therefore, acts well within its constitutional prerogative when it promotes heterosexual marriage over alternative family structures.

James D. Standish is executive director of the North American Religious Liberty Association: www.religiousliberty.info

1 U.S. Department of Health and Human Services, Center for Disease Control and Prevention, National Center for Health Statistics, www.cdc.gov/nchs/fastats/unmarry.htm.
2 Sarantakos, Sotirios. "Children in Three Contexts: Family, Education and Social Development," Children of Australia, Vol. 21, no. 3 (1996): 23-31. (Finding that children of married heterosexual couples do significantly better in a broad range of academic areas than children of unmarried heterosexual couples, and that the children of married and unmarried heterosexual couples significantly outperform children raised by homosexual couples).
3 Sandi Nelson, Rebecca L. Clark and Gregory Acts, "Beyond the Two-Parent Family: How Teenagers Fare in Cohabitating Couples and Blended Families," www.urbaninstitute.org (finding that teenagers living with their two biological parents have significantly improved mental health and academic achievement and significantly lower rates of serious behavioral problems at school compared to teenagers living in single parent households or blended families. This study was sponsored by the Urban Institute, which has published material in favor of gay marriage, but frankly concludes that "the most favorable outcomes we observe are for teenagers living with their biological parents who are married to each other").
4Ronald P. Rohmer and Robert A. Veneziano, "The Importance of Father Love: History and Contemporary Evidence," Review of General Psychology, Vol. 5
no. 4 (2001): 382–405, http:/academic.uofs.edu/student/sitoskis2/fatherlove.html.
5 It is sometimes suggested that those promoting the preservation of the definition of marriage would better use their time working to reduce divorce rates. This assumes two things. First, that there is no connection between the promotion of alternative family structures and the decline in marriage, and second, that those working on the one issue are not already working on the other. While it is difficult to prove a correlation, it appears hardly coincidental that we are experiencing high levels of family breakdown in a society in which many of those promoting same-sex marriage have been promoting with equal ardor the concept that there is nothing uniquely beneficial about heterosexual marriage and that sexual freedom is an integral component of personal happiness. Further, it is worth noting that many of the individuals and organizations most firmly dedicated to preserving the definition of marriage are just as dedicated to strengthening divorce laws, providing premarital counseling, and taking other steps to strengthen the faltering marriage institution. The two positions are complementary.
6 Robert S. Hogg et al., "Modeling the Impact of HIV Disease on Mortality in Gay and Bisexual Men," International Journal of Epidemiology, Vol. 26 (1997).
7 R. Herrell et al., "A Co-Twin Study in Adult Men," Archives of General Psychiatry, Vol. 56 (1999): 867-874.
8 Mortality and Morbidity Weekly Report (Centers for Disease Control and Prevention), Sept. 4, 1998, p. 708; "Viral Hepatitis B—Frequently Asked Questions," National Center for Infectious Diseases (Centers for Disease Control and Prevention) Sept. 29, 2000; "Hepatitis C: Epidemiology: Transmission Modes," Mortality and Morbidity Weekly Report (Centers for Disease Control and Prevention), 1998.
9 C. M. Hutchinson et al., "Characteristics of Patients With Syphilis Attending Baltimore STD Clinics," Archives of Internal Medicine, Vol. 151 (1991): 511-516.
10 Vincelette et al., "Predicators of Chlamydial Infection and Gonorrhea among Patients Seen by Private Practitioners," Canadian Medical Association Journal, Vol. 144 (1995): 713-721).
11 Ibid.
12 For example, according to AVERT, an international HIV/AIDS charity, in Australia "a history of male homosexual contact was reported in more than 85 per cent of newly acquired HIV infection diagnosed in 1997 to 2001," www.avert.org.aausstatg.htm.
13 Peter Freiberg, "Study: Alcohol Use More Prevalent for Lesbians," The Washington Blade, Jan. 12, 2001, p. 21, citing to the JCCP.
14 D. Island and P. Letellier, Men Who Beat the Men Who Love Them: Battered Gay Men and Domestic Violence (New York: Haworth Press, 1991), p.14.
15 www.sociology.ohio-state.edu/bm/mainpage.html.

Article Author: James D. Standish