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One reason I believe that same-sex couples will ultimately prevail is that, at its heart, what they want is actually quite conservative. In the days of the sexual revolution, part of being gay was not having to get married. It was itself a revolt from the conservative structures of society. Even today cultural theorists talk about homosexuality providing a model for the demolishing of old social forms and the recontextualization of love, sexuality, and all human relationships.
But what most gay activists want these days is not to destroy the constructs of the status quo society, but merely to participate in those constructs. They are not challenging the artificial limits placed on the expression of sexual desires, but rather asking to be given a parallel place in supporting the values of monogamy and parenting. Far from threatening the core essence of "family values," the gay rights movement is probably one of the loudest voices affirming the values of marriage and the nuclear family in a culture increasingly home to single-parents and cynicism about the value of marriage.
I see this as part of a larger movement toward conservative mores in the often-negative aftermath of the baby boomers' experiment with social revolution. Importantly, these values have crept into gay culture without the influence of the government. This demonstrates two things 1) that there are serious limits to the amount to which government policy can affect social values — heterosexual marriage has long been favored by government, but it has declined even as homosexual marriage has grown — and 2) that homosexuals can and do marry and form families without the government's blessing.
While these observations should be second nature to the party of small government, many Republicans have blinded themselves to reality and have — as Asimov's statesman-hero put it — let their "sense of morals get in the way of doing what's right." Representative of this position is Republican Senator Rick Santorum, who recently appeared on The Daily Show with Jon Stewart to promote his book It takes a Family. After asserting that he thought a two-parent family with parents of both sexes was ideal for children, Santorum was asked if one could "legislate the ideal," to which he responded "You have to."
That position, however, is intellectually untenable. We don't have the option of legislating the ideal. We legislate reality and our goal is not the best imaginable world, but the best possible one. It is inexcusable to let down children simply because they exist in circumstances that are not part of our ideal, but that is what is happening.
Despite approval or lack of approval from government and society, gays are marrying. Perhaps not in the legal sense of the word, but certainly in the sense that they live as married couples and they stand up before their families, their friends, and their God and exchange vows. Under American secularism, which recognizes religion as a greater power beyond the grip of the state, I believe it is the religious rather than legal sense that truly counts.
So too are gays having and raising children, either through surrogates, adoption, or prior heterosexual unions. There is nothing the government can realistically do to stop this, so we must accept it, whether or not we think it is the 'ideal.'
And there certainly will be debate about whether it is ideal. The argument that children are better off having a parent of each sex is not one that can be simply dismissed. But even as that question remains unclear, one thing is certain: children of heterosexual couples are better off than children of homosexual couples, not because of who their parents are, but because of the legal status granted to their families.
Children of married heterosexuals do not have to worry about one parent leaving and not being deamed accountable for continued support. They do not have to worry about their status changing drastically if they move to a different state. They do not have to worry that a foreign-born parent will be denied the right to stay with an American spouse and their children. They do not need to worry that a parent will become sick and they will have no right to see that parent in the hospital.
The cost of Santorum's idea of "promoting" the traditional family by refusing to recognize homosexual unions will be born by innocent children given no choice in the kind of family into which they were brought forth. So too will these children experience the destruction of bedrock principles of conservative jurisprudence: consistency and predictability. Because gay couples cannot enter into legal marriage, with its precedents on divorce, child custody, etc., they must approximate this legal relationship with custom contracts. The result is that rather than being able to rely on established precedents of family law, children of gay couples will find themselves in unique legal situations owing to the particular contracts their parents did or did not sign beforehand, as well as the variable extent to which different State courts choose to apply existing law.
The functional purpose of the state recognizing marriage is not to "promote" marriage. Instead, the state chooses to recognize marriage as a service to its citizens, by whose consent it governs, because so many of them choose to enter into the same covenantal relationship. The state renders the service of providing a single definition of marriage with a single body of family law, rather than letting confusion reign in the courts by asking each couple to draw up a unique contract.
The result is not just that things are simpler for the courts; things are also safer for the children who arise from these marriages. Even if we find it acceptable to discriminate against a couple on the basis of their sexuality, we cannot morally discriminate against a child on the basis of his or her parents' sexuality. That is why the state must recognize gay marriage.
The California High Court chose a wise decision, even if it is not ultimately found to be the constitutional decision, when it applied existing laws to the children of same-sex parents, but there are bound to be different rulings in different States and this is where the legislatures must step in and act in the interest of children, not in the interest of ideals.
