Rights “always in service of children” says family law professor

Wednesday, I attended two meetings with experts on the anti-gay marriage side of the debate here in Washington DC. I had hoped to be intellectually stimulated. I had hoped that the meetings would reveal arguments with more depth and nuance than what I have read on the internet. After all, they are the experts and I would be hearing from them directly, rather than be filtered via a reporter or blogger.

To be frank, I was disappointed. In two hours of discussions, all I heard was a rehash of the same arguments, with no more refinement than what had been reported in recent years.

Helen Alvare is an associate professor of law at George Mason University, and a specialist in family law. In a nutshell, she believes that gay people should never be discriminated against, but nonetheless stands firmly against legalising same-sex marriage.

How does she arrive at such an awkward position, I wondered?

As it turned out, her starting point was that raising children well was an essential public good. This being the case, it is entirely justifiable for law to be framed in ways that promote such an objective. I found nothing wrong with this starting point, though she put it in a manner I thought was a little too black and white: “Adult rights in the context of family,” she insisted, “are always in the service of children.”

Alas, the next layer of her arguments I found to be flawed. She linked the raising of children with opposite-sex marriage, making the vague claim that social and legal changes that devalue this kind of marriage undermines the public good. “The last thing we need in US society is another statement that marriage is unimportant.”

She considered the legalisation of same-sex marriage as yet another such statement. This ignores the argument that the very fact that gay people want to get married, and want to raise families too, are really endorsements of the value of marriage, not contempt for it.

However, in her view, same-sex marriage is only the latest assault on traditional marriage. “In the 1970s and 1980s, there was a whirlwind of changes to family law,” she said. First came no-fault divorce that made it easier for unhappy marriages to break up (you mean, it is better for unhappy spouses to stay on?), and then society and the law began to approve of cohabitation, followed by new reproductive technologies and finally making birth control available to single persons as a constitutional right.

It’s quite a list, and it’s really hard to imagine what society would be like if we rolled back all these changes now.

Nonetheless, she said data showed that families suffered as a result of these trends, particularly among those from the lower socio-economic strata. All the bad data, e.g. divorce, single-parenthood, began increasing as the above changes kicked in.

These effects didn’t show up much among well-off families (e.g. their divorce rates remained largely the same as previously) but mainly among poorer families. This may increase and perpetuate poverty. “About two-thirds of poverty in the US is due to family structure.”

Added Alvare: “There is no divide in America that is as deep as the divide between families who have a father and those that do not.” In education and economic wellbeing, this counts more than any other factor.

She emphasised that her primary concern was that her work should “benefit minorities”. Thus her great skepticism about all these changes and trends that undermined traditional marriage.

“The stability of the male-female relationhip,” she said, played an important role in “passing on values, education and economic stability from one generation to another.” And since “the stability of the family is the stability of state and society,” it was of concern to her that society underlines its appreciation of the male-female relationship through laws. “Marriage is the birthplace of society. Marriage produces good citizens.”

First of all, her assertions are based on questionable data. While she herself did not say exactly which study she relied upon, others using the same agruments as she did have been criticised for using data that compared single-parent with two-parent families, which misses the point.

While there aren’t many studies comparing child-raising by same-sex parents with opposite-sex parents, where there are, they have shown that “educational and employment outcomes for their children are just the same, if not better” as children from opposite sex marriages, said Jeff Krehely (pic at right) of the think tank, the Center for American progress, whom I had met the day before.

It stands to reason, he said. “Same-sex couples cannot accidentally conceive.” This fact alone skews the average upwards for same-sex couples. Those that have children have made a deliberate decision to do so. Consequently, they are “more focussed, more mindful to be parents.”

This demolishes Alvare’s argument that it would serve society to create a bias in favour of opposite-sex coupling and refuse legal status to same-sex couples.

I asked her a question: If society should have an interest in promoting good parenting – which I agree with – why do so by regulating something so indirect as marriage? Why not regulate parenting directly? In other words, the state should get out of the marriage business, and instead of giving out marriage licences, give out child raising licences.

Her reply was that doing what I suggested would violate the US constitution’s privacy rights clause. How can the state intrude into the bedroom?

I was not convinced. My suggestion does not call upon the state to enquire into sexual lives. But it can penalise people for producing or adopting children when they do not have the wherewithal to raise them properly, which is no different from the state not issuing a driving licence until one has passed a driving test. Just as one would not say that licensing driving violates the right to freedom of movement, child-raising licences do not violate privacy rights.

No doubt I was being provocative, but I aimed to show how poor the connection was between opposite-sex marriage and the starting point that society had an interest in good parenting.

Yet, she believed in equal rights for gay people. “We shouldn’t discriminate in housing, in employment,” she said by way of example.

In her view, gay people are now wanting the right to marriage because they want the state and society so see them as equal citizens. “They think that the test that their sexuality is acceptable is marriage,” she said. Equal treatment is a legitimate desire, one that she was ready to support, “but let’s take care of this [demand] by passing anti-discrimination legislation.”

Too glib, I thought. What about gay people’s desire to have their loving relationships recognised in the same way as heterosexual persons? What about their desire to have children of their own?

The meeting with Alvare was followed by one with Brian Brown, president of the National Organisation of Marriage, which I will report on in the next article. He and his organisation have been at the frontlines of the battle against marriage equality. What were his arguments? How did he frame his case?

25 Responses to “Rights “always in service of children” says family law professor”


  1. 1 Sprechen Sie Singlisch? 7 June 2012 at 12:06

    I’m surprised that the issue of non child bearing heterosexual couples was not raise. If a heterosexual couple is unable or unwilling to have kids, should this mean that they should be denied the right to marriage?

  2. 2 Poker Player 7 June 2012 at 12:25

    Come on…it’s not that bad. At least here it looks like a debate. With Thio Li-Ann, no one who knows what an argument looks like even knows where to begin…

  3. 3 octopi 7 June 2012 at 16:36

    If you really want to know what confusion is, a lot of Singaporeans think that 377A reflects the aversion that many people have against homosexuals, but will at the same time say that gays are not discriminated against in Singapore.

    • 4 Erica 7 June 2012 at 21:27

      Even some well educated people have said that one. Difficult to understand how their minds work. Seems like it’s like a blind spot for them.

  4. 5 Anonymous 7 June 2012 at 22:34

    you know Alex, you could totally nail the Alvare woman by asking her to define traditional marriage. she’s bound to say something like one man and one woman, but that version of marriage isn’t a very old one, and in fact marriage varies widely across time and space. you have polygamy especially in ancient times, and in societies which are extremely poor in resources, it’s very common to have polyandry, because it’s too taxing to for one man to raise children. it requires a whole bunch of guys.

    also, as you mentioned, current research data suggests that abuse of children occur far more in heterosexual families and a lot less in homosexual families.

    and frankly that poverty link thing is just bullshit. correlation does not equal causation. the only thing that set of data linking single parenthood to bad families shows (if that data set is even true/properly conducted in the first place) is that it’s much better to raise a child with 2 adults than 1 adult. it says nothing at all about gender.

  5. 6 Erica 8 June 2012 at 02:02

    She seems to make a lot of assumptions, I can’t see her establishing any causal link in any of the points she makes about the supposed weakening of marriage over the years, before she even gets to the preposterous suggestion that allowing gay couples the strength of the marital bond, in some way weakens it for anyone else.

  6. 7 Ian 8 June 2012 at 08:50

    she sounded like she supports civil union/domestic partnership to me, everything marriage has except the name.

    And then it falls into discrimination.

    Looking forward to BB’s arguments, perhaps it’ll give us an insight to the debate he’s about to have with Dan Savage.

  7. 8 J 8 June 2012 at 18:42

    In our country, Thailand, gay marriage is not considered a serious issue. Although there’s a large number of homosexuals and transgenders in Thailand and they appear, at least superficially, to have legal rights and accepted, this is not the case from alegal perspective. Thailand Family Law is actually quite conservative when it comes to alternative lifestyles. until very recently, transgenderism was considered a mental case in Thailand. Although I feel. personally, that the government should not be involved in legislating morality. In Asia, morality seems to be one of the major factors guiding legislation.

    • 9 Poker Player 10 June 2012 at 00:09

      “In Asia, morality seems to be one of the major factors guiding legislation.”

      You mean to say “patriarchy”.

      • 10 Poker Player 10 June 2012 at 00:20

        Like Singapore for example. Patriarchs need sex, so prostitutes selling sex to them are legit. But if you are gay, you are no patriarch – so 377A. Giving away daughters or selling them is far less scandalous than a closet gay father – another example. Or like some of our friends in other parts of Asia, honour killings is custom, gay sex you get lynched. That’s Asian values for you…

      • 11 octopi 10 June 2012 at 10:44

        In ancient Japan, the patriachy were the samurai. And they were gay as fuck. This has nothing to do with patriachy. It is a morality issue. Morality meaning “what certain people think is right”, as opposed to ethics, where you actually have to philosophically defend your position.

      • 12 yawningbread 10 June 2012 at 22:15

        I think you’re inviting criticism with your sweeping remarks.

      • 13 Poker Player 11 June 2012 at 10:52

        “Morality meaning “what certain people think is right”, as opposed to ethics, where you actually have to philosophically defend your position.”

        Here we go again…
        Do you ever bother to learn about anything first before commenting?

        http://en.wikipedia.org/wiki/Morality#Morality_and_ethics

        The word ‘ethics’ is “commonly used interchangeably with ‘morality’ … and sometimes it is used more narrowly to mean the moral principles of a particular tradition, group, or individual.”

      • 14 Poker Player 11 June 2012 at 10:57

        And this is one of the times when just highlighting is enough…

        “In ancient Japan, the patriachy were the samurai. And they were gay as fuck.”

        Wow…

      • 15 octopi 13 June 2012 at 07:29

        Is it not true that homosexual behaviour was pretty widespread among the samurai? Nobody mentioned the ancient greeks?

        Still, the point is made: patriachy is not the opposite of tolerance of homosexuality. Intolerance of homosexuality has more to do with some peoples’ entirely subjective notion of what is right and wrong.

        I say that morality is used in a more normative sense than ethics, and then you give me a link that says that morality is used in a more normative sense than ethics. What gives?

      • 16 octopi 13 June 2012 at 07:55

        http://en.wikipedia.org/wiki/Homosexuality_in_Japan

        “From religious circles, same-sex love spread to the warrior (samurai) class, where it was … etc etc etc”

        You know if you educated people that homosexuality was very much tolerated in ancient societies, you might have a better chance of people accepting it, rather than thinking that it’s the decadent aspect of modern living.

      • 17 Poker Player 13 June 2012 at 11:20

        “I say that morality is used in a more normative sense than ethics, and then you give me a link that says that morality is used in a more normative sense than ethics. What gives?”

        Ah… new keyword … “than”. But you don’t quote the part of the link that supports your new claim…because you can’t.

      • 18 Poker Player 13 June 2012 at 11:30

        “I say that morality is used in a more normative sense than ethics, and then you give me a link that says that morality is used in a more normative sense than ethics. What gives?”

        And BTW do you know how clauses in a long sentence relate to each other?!!?? Simplified for you benefit:

        The word ‘ethics’ is … sometimes … used more narrowly to mean the moral principles of a particular tradition, group, or individual.”

        It’s the opposite of what you are claiming!!!!!!!

      • 19 Poker Player 13 June 2012 at 11:43

        Is it not true that homosexual behaviour was pretty widespread among the samurai? Nobody mentioned the ancient greeks?

        Still, the point is made: patriachy is not the opposite of tolerance of homosexuality. Intolerance of homosexuality has more to do with some peoples’ entirely subjective notion of what is right and wrong.

        Your first paragraph is a banality. (People who read this blog already know this – see

        https://yawningbread.wordpress.com/2011/12/01/orchids-fathers-sons-and-anti-gay-battle-axes/#comment-12363

        Prisons, Cambridge, English “public” schools, “buggery and the Royal Navy” in the country that gave us 377A (by way of India). Some patriarchies tolerate homosexuality, some don’t (hypocritically). And their interests (the partriarchs’) are what guide legislation – not morality.

      • 20 yawningbread 14 June 2012 at 00:13

        An example of a highly patriarchal society that tolerated homosexuality is right before our eyes: China, through thousands of years.

      • 21 octopi 16 June 2012 at 22:48

        The main obstacle to gay rights today is the attitude of the people. Our leaders right now are sitting on the fence. The attitudes of the people may have been shaped by conventions of the past, and conventions of the past may have been shaped by laws written by the elites. But the reason why 377A is so difficult to repeal today is because peoples’ attitudes are stuck. The enemy of gay rights in Singapore is not the patriachy, nor the elite. It is because of anti gay attitudes amongst the rank and file.

        Put it this way. Elites are few. They can change their minds very quickly. Not so for the people. The obstacle to reform: your churches, your kindly old aunt who hopes that boy boy won’t grow up to be “one of them”.

      • 22 yawningbread 17 June 2012 at 11:33

        You are right but the state is still complicit because it uses censorship to keep people uninformed. That is partly why attitudes are stuck. In this, LGBT people are together with many others who are fighting for the freedom of speech.

      • 23 Poker Player 17 June 2012 at 11:54

        “The enemy of gay rights in Singapore is not the patriachy, nor the elite. It is because of anti gay attitudes amongst the rank and file.”

        With “morality” and “ethics” finally out of the way, last point is that the patriarchy is “in” the “rank and file” (first sentence in http://en.wikipedia.org/wiki/Patriarchy) and deference toward it is what the system depends on.

        And why the aunt and kindliness? We know it’s usually the father and his power…and what do we call that…

  8. 24 fnhh04 8 June 2012 at 21:33

    One could also argue that same-sex marriage should be legalised “because of” the desire to protect children, and not despite of it. Marriage is really, and has always been part of the conservative values. As regard to same-sex parenting, this youtube video, which is a testimony by a student with same-sex parents, says it all – http://www.youtube.com/watch?v=yMLZO-sObzQ

    • 25 Erica 9 June 2012 at 18:37

      Whilst I don’t agree that marriage per se is a conservative thing, it transcends politics, it can be a stabilising force. But many conservatives in Europe ( such as the British Prime Minister) and America do see extending marriage to gay couples as not only the fair thing to do, but a socially beneficial thing to do, adding to the stability both of those families and of society in general. “I support gay marriage not in spite of being a Conservative, but because I’m a Conservative” – British Prime Minister Cameron.


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