Legal Commentary

Gay marriage is, once again, in the news.  As of Wednesday, New Hampshire became

the 6th state to allow same-sex marriage, and gay marriages can be officiated there

as of January 1; Dick Cheney, whose daughter, of course, is gay, thinks that gay 

marriage is something the states should work out; and some 18,000 same-sex 

California marriages are legal, even though same-sex marriage is otherwise illegal

 in the state. And then there?s Surrogate (and former CUNY Law School Dean)

Kristin Booth Glen?s opinion in In re Sebastian (N.Y. Surr. Ct.

Apr. 9, 2009).  She granted one lesbian spouse's petition to adopt a son born to the other spouse.  Judge Glen acknowledged that while "an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of [both his mothers] as his legal parents throughout the entire United States.?

Not surprisingly, all of the states in which same-sex marriages are recognized or in which they are legal are blue.   June Carbone and I have written in Red Families v. Blue Families (Oxford University Press, forthcoming) that the new information economy is transforming the family, resulting in the development of two different family paradigms: red and blue.  The blue family paradigm emphasizes the

importance of women?s as well as men?s workforce participation, egalitarian gender roles, and delay of marriage and childbearing until both parents reach emotional maturity and financial self-sufficiency.   In this world, teen childbirth is a tragedy, gay and lesbian neighbors commonplace, and the consensual sexual lives of adults a matter of privacy.  Red families, or more accurately, those who have pushed a ?moral values? agenda, reject the new culture.  They continue to emphasize religious teachings that celebrate the unity of sex, marriage and reproduction.  Red regions of the country, however, have higher teen pregnancy rates, more shot gun marriages, and lower average ages of marriage and first births.     

Same-sex marriage is, in many ways, critical to the terms on which the two paradigms will be defined going forward.  Recognition of same-sex marriage has the potential to revitalize discussion about what marriage is for ? and for whom it is compelled.   The fear within the red family world is that recognition of same-sex marriage underscores the point that marriage is a socially constructed institution, governed by the law, rather than part of an eternal divine order.   If marriage is humanly created and defined, then it is also changeable ? and ultimately optional as a way to order intimate relationships.  

On the other hand, the ultimate challenge to the red paradigm does not, of course, come from gays and lesbians. Instead, the real issue is sex ? and the question of continued societal support for a principle ? limiting all sex to heterosexual marriage ? that no longer commands support from a majority of the population even in red states (though not necessarily the core red constituencies).