David Orentlicher

As Indiana’s same-sex marriage debate moves from the Statehouse to the courthouse, it is becoming clear that the question is not whether same-sex marriage will be recognized but when that will happen. Since December, federal judges in Utah, Oklahoma, Virginia and Texas have ruled that same-sex marriage bans violate the U.S. Constitution, and past decisions by the U.S. Supreme Court indicate that arguments against same-sex marriage ultimately will fall short.

Although the Supreme Court once deferred to a legislature’s moral judgment about personal relationships and other social practices, that is no longer the case. When important interests such as marriage are at stake, moral disapproval of a person’s conduct is not a sufficient reason to prohibit the conduct. The government needs to identify tangible harm. For example, while prohibitions against murder reflect moral disapproval, they also reflect the need to prevent serious injury to people. A ban on same-sex marriage must rest on something more than public morality.

Opponents of same-sex marriage therefore have argued that children are better off being raised by opposite-sex couples than by same-sex couples. In this view, it is valuable to be raised by both a man and a woman — men and women bring different strengths to their parenting, and children benefit from a diversity of parenting styles and philosophies. Children, it is thought, need a female mother and a male father.

There are several problems with this view. It misreads the empirical evidence on parenting, misjudges the role of government and misconceives the function of marriage.

First, studies do not find any differences between children raised by opposite-sex parents and children raised by same-sex parents, once researchers control for other factors, such as family wealth, that can influence a child’s well-being. Children raised by same-sex parents fare as well as children raised by opposite-sex parents in their intellectual skills, behavior, emotional development and progress in school. It is better to have two parents than one, but it does not seem to matter whether the parents are two men, two women, or a man and woman.

The studies are not definitive. But even if there were differences between children with same-sex parents and children with opposite-sex parents, that would not be a sufficient reason to ban same-sex marriage. It is not the case that children have a choice between being born to same-sex parents or being born to opposite-sex parents. When children are not conceived for same-sex parents, those children will not be conceived at all. We do not benefit children by preventing them from being brought into existence.

In addition, we must not allow the government to determine who should and should not be parents based on whether their children will do as well as children of other parents. Deciding whether to become a parent is too important a right. If the government could choose among prospective parents, it could deny parenting to people with genetic diseases, to individuals who are indigent, or to persons who are single. Fundamental rights are rights not only for the fittest in society — they are rights for everyone.

Moreover, we know from experience that when the government gets to decide whether some people can be denied important rights, the majority will use its power unfairly. As the Supreme Court wrote more than 70 years ago, the power to disapprove parenting is the power for the majority to “cause races or types which are inimical to the dominant group to wither and disappear.”

And marriage is not just about parenting. Marriage is a critical way for two people to form an intimate and long-lasting relationship. People in good marriages enjoy better health, longer lives and greater prosperity than do their single counterparts. Hence, the law encourages seniors and other persons to marry even though they will never have children with their spouses.

It often is difficult for people to abandon long-standing traditions, but the Supreme Court has rightly recognized that even widely followed traditions can be based on faulty assumptions. The tradition rejecting same-sex marriage rests on many faulty assumptions.

Orentlicher, a former Democratic state representative, is Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.