We Can’t Use 1915’s “Biological Reality” to Assess 2015’s Marriage Equality

As our nine Supreme Court justices wrestle with a decision in the consolidated same-sex marriage case, Obergefell v. Hodges, one of the central arguments they will weigh is the role of marriage in raising children. At least, that’s how the opponents of same-sex marriage have framed the issue in recent years: this isn’t about gay people at all, it’s about children.

In arguing the case, former Michigan Solicitor General John J. Bursch said the issue of marriage revolved around “biological reality,” and that the state’s definition of “biological reality” should involve only one man and one woman conceiving a child.

That may have been reality in 1915, but in 2015 “biological reality” has changed, just as has every corner of our society.

Technology has transformed our reality, and that goes for family building. Advances in medicine have opened the door to parenthood for so many people - including same-sex couples - who just a few decades ago would have been unable to conceive a child. Proven clinical protocols have demonstrated that men with HIV can have children safely - with minimal risk to mother or child - with the application of some new techniques. These technologies are inspiring and life-affirming.

Yet by Bursch’s measure, airplanes should be illegal because humans don’t have wings.

Even if someone thinks that same-sex couples having children will lead to the end of civil society, blocking those couples from marrying will do nothing to curb that. I’ve helped hundreds of LGBT people become parents, and the vast majority had no legal recognition of their relationship when they conceived. There are certainly other countries where these couples are blocked from having children through surrogacy or adoption, but in the United States we ended that debate long ago - Married or not, the right of gay couples to have children isn’t going away.

“When you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad,” Bursch argued, “that has consequences.”

The consequences, in this case, are children who are happier, healthier and well-adjusted to today’s society. Various studies have pointed to that conclusion for children raised by same-sex couples. A recent study of 500 children in Australia said quite clearly that “children in same-sex parent families had higher scores on measures of general behavior, general health and family cohesion.” This corroborates what we know from other studies showing kids with gay parents are just like kids with straight parents.

Yet the Australian study went a step further and found something that did in fact hurt these children of same-sex couples: the stigma associated with their parents. Laws against the legal recognition of these parents, public-relations campaigns demeaning gay people, and yes, arguments before the Supreme Court, hurt these children far more than the sexual orientation of their parents ever could.

Australia is one of the many countries with laws banning surrogacy, a huge impediment to gay-male couples having children. With countries like Thailand and India tightening the controls on surrogacy, many of them now have to look across the Pacific Ocean to California to build the family they want.

Yet even Australia is poised to recognize same-sex marriage by the end of the year.

The children of same-sex couples are 2015’s “biological reality.” The wonderful families I have watched walk through my doors over the last two decades have been inspiring. Now it’s time for the Supreme Court to make our nation’s laws consistent with today’s reality and legalize same-sex marriage once and for all.

It’s what these children deserve.