How the ‘Right to Marry’ Became a ‘Right to Children’

In 2013, Amy Davidson Sorkin covered for The New Yorker the Supreme Court hearings over California’s Proposition 8. As shocking as it sounds today, there was a brief moment in California history when voters had amended the state constitution to legally define marriage as only the union between one man and one woman. In one of her articles, Sorkin described how Charles Cooper, a lawyer on behalf of Prop 8, argued that the government had a duty to protect marriage because it had a duty to protect children. 

Sorkin found Cooper’s argument “baffling.” In fact, she argued that if the state wanted to protect children, it should affirm same-sex “marriage.” After all, some gay and lesbian people have children before they enter a same-sex arrangement. And, she added, the state has many other compelling reasons to affirm so-called same-sex “marriage,” which have, as she put it, “nothing to do with children.” 

Today, 11 years later, another lawsuit is before the courts, this one brought by a gay couple who alleges that “New York’s definition of infertility discriminates against same sex couples.” According to a description in The Guardian, one of the men previously worked for New York City, whose health insurance plan included coverage for in vitro fertilization for heterosexual relationships. The men point to a new definition issued by the American Society of Reproductive Medicine in October 2023, which describes infertility as “a disease, condition or status” necessitating “medical intervention—including donor gametes.” Thus, they argue, same-sex couples should also be considered “infertile” and therefore eligible for coverage.

“We got married and then we wanted all the trappings,” one of the men explained to reporters in 2022. “House, children, 401K.” Inherent in both that statement and the lawsuit (and so much of our culture downstream from the sexual revolution) is the idea that desires and rights are the same thing. However, when Cooper argued on behalf of Prop 8 in 2013, he did not suggest that it was abhorrent for gay people to desire children. Rather, he argued that if the state were to legally untether marriage from procreation, adults would soon make demands that would threaten the rights that children have, especially the right to their mothers and fathers.  

Advocates for same-sex “marriage,” however, argued that marriage and children have nothing to do with one another. Marriage, they said, was about adult love and happiness, not children. But not long after achieving full legal affirmation, many who had chosen an inherently sterile union argued that their desire to have children constituted the legal right to have children. Since artificial reproductive technologies have made it possible to have children outside of natural procreation, to deny gay couples the children they desire is now considered to be a form of discrimination. 

When this lawsuit was originally filed in 2022, one of the men said to The Guardian, “Our family will be a motherless family. I won’t tiptoe around that.” But, of course, there’s no such thing as a “motherless” family, is there? In fact, this pair of men is suing to gain access to a mother, a mother who neither of the men are, who can do something neither of the men can do, and who will likely be hidden in the photos that will be posted on social media and hung on the walls of their home. 

Our technologies may move the procreative process to another location (a petri dish in lab), but it still takes a man and a woman to make a baby. We may label it discrimination and lament how it impedes our desires, but every child has a mother, even if she is labeled “surrogate.” To take that child away from that mother, even if the woman is paid every cent agreed upon, is to steal something fundamental from her. More importantly, it is to steal something essential from the child, who was given no say in the matter whatsoever.  

Many Christians bravely fought against the legal re-definition of marriage. Today, 11 years later, too many have given up, as if the Supreme Court “settled the issue.” It did not because it could not. We must not stop fighting because the fight is for children, who have a God-given right to their mother and their father. 

For more resources to live like a Christian in this cultural moment, go to breakpoint.org.

This Breakpoint was revised from one released on 11.3.22.