In the federal lawsuit challenging Michigan’s same-sex marriage ban on behalf of a lesbian couple who want to adopt each others’ children, the state of Michigan continues to make terrible arguments in defense of that law. In their latest brief, they continue with this completely irrelevant claim:
Indeed, Plaintiffs’ argument rests on the conclusion that there is only one rational way to define marriage — as between two consenting adults — and that it makes no difference for raising children whether a child has both a mother and a father. The State’s response, however, is a modest one: it is within the realm of reason to believe that having both a mother and a father benefits children.This point reflects the reality that every child of a traditional marriage has a mother and a father. But in a same-sex marriage, there is always one biological parent who is not a legal one, and one legal parent who is not a biological one. The State does not seek to injure anyone, but rather wishes to foster what the majority of its citizens believe to be best for children. That effort is a reasoned one…
No single person — regardless of sex or sexual orientation — may join with another single person to adopt a child in Michigan. Further, the fact that same-sex families exist in Michigan does not in and of itself make irrational the State’s position that, all things being equal, it is optimal for children to be raised in a family where both sexes are represented.
Such a terrible argument. There may be some Platonic ideal of a perfect family here that many people hold, but so what? But how does forbidding a lesbian couple from adopting the three children they have raised together for years (one of them previously adopted two of the children, the other adopted the third) help attain that ideal? This has nothing to do with whether having a mother and a father in the home is good “all other things being equal.” Gay people are not going to all run out there, form relationships with people of the opposite sex and start having children. And even if they did, you shouldn’t want them to. Believe me, I’ve seen first hand the damage that someone pretending to be straight and getting married to cover up being gay (for a time; it never lasts long because it’s too damaging to everyone involved) can do.
The state is trying to make a very minimalist argument here because they know that’s all they have. They’re trying to argue that even if there isn’t a very coherent argument to be made, it meets some minimal level of being “rationally related to a state interest,” as the rational basis test requires in its most lenient formulation. But in light of the Supreme Court’s DOMA case and it’s “more searching form of review,” I don’t think that’s going to fly. And despite all of these broad and vague arguments about the Platonic ideal of marriage, the state has to explain why denying the protection of marriage to this particular family helps the state achieve a compelling interest. And they just can’t do that.