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Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
The Institution FormerlyKnown as Marriage
 byJennifer Roback MorseThe Iowa court’s recent decision does notsimply broaden marriage, it radicallychanges its nature. While marriage previously served public purposes of attaching mothers and fathers to their children and one another, now marriagemerely serves as affirmation of adultfeelings.The Iowa Supreme Court recently provedthat the critics of same-sex “marriage” arecorrect: we are not being urged to makemarriage more inclusive, but to radicallyredefine the nature of marriage itself. Withits decision, the Iowa Supreme Courtcovertly but profoundly changed themeaning of marriage. The Court abolishedthe essential public purpose of marriage, andreplaced it with a new understanding of marriage that is neither essential nor public.The Institution Formerly Known asMarriage will be an empty shell in Iowa. Asthe movement to redefine marriage spreadsacross the country, citizens should look toIowa to see what this actually entails.The essential purpose of marriage is toattach mothers and fathers to their childrenand to one another. Absent this purpose, wewould not need marriage as a distinct socialinstitution. Human beings are not born asrational autonomous actors, they are theimmature products of sexual relations between a man and a woman, and they needthe assistance of adults to survive. Marriageexists, in all times and places, to solve thissocial problem. If our offspring were born asadults, ready to live independently, or if wereproduced through some form of asexual process, we would not need anything likemarriage.Marriage also has a profoundly social purpose. Marriage creates its own smallsociety consisting of mother, father, andchildren. That small social unit contributesto the larger society by creating afunctioning future—the next generation.Everyone benefits from having a nextgeneration that can sustain the society andkeep its institutions going. Even when I personally am old, and even if I have nothad any children myself, I benefit from thefact that younger people are building carsand houses, providing medical and legalcare, starting new businesses, and runningold ones.In modern developed countries, the familyalso saves the state a lot of money by takingcare of its own dependent young, rather thanfoisting that responsibility onto thetaxpayers. Thus, the benefits of marriage gofar beyond the benefits to the individualmembers of the family.So, what did the Iowa Supreme Court haveto say about the purposes of marriage? Didthey view the requirement that marriage be between a man and a woman as a violation
 
Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
of the principle of equal protection? Indeed.As the Courtargued, “Equal protectiondemands that laws treat alike all people whoare ‘similarly situated with respect to thelegitimate purposes of the law.’” If the Courtcan convince itself that the dual gender requirement bears no relationship to theState’s purpose in having a marriage statutein the first place, then that requirementviolates the Equal Protection clause of theIowa Constitution.It should be evident that if the purpose of marriage is to attach mothers and fathers totheir children and to one another, then thedual gender requirement is perfectly permissible. Same-sex couples and opposite-sex couples are not the same with respect tothis purpose. The Court had to come up witha very limited understanding of the purposesof marriage in order to maintain thatopposite-sex and same-sex couples are infact similarly situated.The Court enumerated several purposesdirectly. Marriage provides an institutional basis for defining relational rights andresponsibilities; marriage allows people to pool their resources; marriage recognizes people’s commitments; marriage providescomfort and happiness; marriage is a status,not a contract.But these reasons do not explain why weneed marriage in particular. I have arelationship with my next-door neighbor.My family pools resources with other members of a boat club. I havecommitments to my employees and businessassociates. A pet brings me comfort andhappiness. We do not need the uniquerelationship called marriage for any of these purposes.The Court alluded to several other possible purposes, without including them within itslist of state purposes. “Therefore, withrespect to the subject and the purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared toheterosexual persons. Plaintiffs are incommitted and loving relationships, manyraising families, just like heterosexualcouples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rightsand responsibilities, justas it does for heterosexual couples.”The Court does not seem to realize that if these purposes really exhaust the list of legitimate state purposes of marriage, thenthere is no reason to have marriage as adistinct legal structure in the first place.Moreover, these are all private purposes, not public purposes, of marriage.The same-sex couples before the Courtclaim to be committed and to love eachother. Why do we need marriage for that?I’m committed to my sister. I love my bestfriend. Are we second class citizens because
 
Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
we are not married to each other? There isno state purpose whatsoever to be served bymy having some legal statement or affirmation attached to my love for mysister. Besides, who really wants the Court,or the state or anyone else saying that our love is important to the state? People’sfeelings are none of the state’s business.The Court seems to understand this, for itgently and subtly elides the key issue of marriage law when it goes on to say:“Society benefits, for example, from providing same-sex couples a stableframework within which to raise their children . . . just as it does when thatframework is provided for opposite-sexcouples.” But wait a minute: How in theworld does a same-sex couple obtain a childthat is “theirs?”This is precisely the way in which same-sexcouples differ from opposite-sex couples. No child is born from a homosexual union.A child born to one of them has another  parent who has been quietly escorted intothe lab or the backdoor, to make theconception possible. That person is quicklyescorted right back out the door, before hecan claim any parental rights, or the childcan claim any relational rights. Some of us believe that these two people, the child andthe opposite-sex parent, require and deservesome protection. But the Court of Iowa doesnot think them even worth mentioning.The social purpose of marriage has always been to attach mothers and fathers to their children, and to each other. This universalsocial purpose does not even makeit ontothe Iowa Court’s short list. The reasonshould be obvious: opposite-sex couples andsame-sex couples are not similarly situatedwith respect to that purpose of marriage. If the Court found that attaching children totheir parents and parents to one another is a purpose of marriage, they would be unableto sustain their claim that man womanmarriage violates the principle of equal protection under the law.Society needs marriage because childrenhave rights to care from their parents, rightswhichthey can not defend on their own.Societies create marriage to pro-actively protect the legitimate entitlements of children, and to provide for the future of thesociety. According to the Supreme Court of Iowa, these provisions for children are nolonger the purpose of marriage. We are leftto guess as to how this truly essential publicfunction will be performed, now that theCourt has surreptitiously removed it fromthe list of marriage’s jobs.Iowa is a relatively homogenous and prosperous state. Thisnewly created lacuna
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