Rescuing Children from the Marriage Movement : The Case Against Marital Status Discrimination in Adoption and Assisted Reproduction

Much of the current groundswell of support for heterosexual-only marriage in the United States arises from the belief that children do best when raised by their married, biological parents. This sense of what marriage and biological ties mean to children individually and to society as a whole has led states to pass laws that directly or indirectly bar unmarried persons from becoming parents through adoption or assisted reproduction, contexts in which parent-child relationships often lack any biological component. Upon close examination, discrimination against the unmarried in adoption and assisted reproduction relates neither to the purposes of marriage nor to child welfare. In the context of assisted reproduction, marital-status discrimination fails to survive interpretivist scrutiny, a standard for policymaking requiring legislation to conform not only to constitutional strictures but also to contemporary legal principles and legislative trends. Marital-status discrimination in adoption, apparent in the law's differential treatment of step-parent adoption and second-parent adoption, fails to meet interpretivism's requirement that the law exhibit both neutrality and consistency. Only by satisfying an interpretivist standard can discrimination against the unmarried in assisted reproduction and adoption command broad public support - the essence of all sound public policy. By continuing to advocate vociferously for favored treatment of married couples in matters of legal parenthood, the heterosexuals-only marriage movement not only works against our legal traditions and values, but also ultimately undermines the welfare of many children whose best hope lies with parents the law does not allow to marry