THE BLOG
06/19/2013 07:41 pm ET | Updated Feb 02, 2016

The Arsenal Is Empty

Sometimes the question pounces from the most unexpected directions.

I was sitting in our daughters' playpen, reading The Very Hungry Caterpillar for the third time that day. That's when our nanny sprung it on me: "Are you the father and Adrián is the mother?" she asked. She'd worked for us for nearly a year and should have known better, but then again, we're her first exposure to a same-sex-headed family. While I couldn't help laughing a little, I patiently explained that, no, our twin daughters have two daddies, but that we both do "mommy" things too, things like changing diapers, making sure they don't starve, wiping tears, and, you know, generally acting as if we love them.

But what about the man at the antiques shop who asked outright, "Where's the mommy?" even though he saw us both together with the girls and surely, in a city like Los Angeles, already knew the answer? Or the well-intentioned Lufthansa flight attendant who asked me, baby in lap, about my wife, even though my husband and other daughter were sitting right across the aisle in 26G? It seems that even the most liberal of people don't realize the rigidity of their assumptions about family and gender roles until they see two men pushing a stroller together. Who does the girls' pony tails and soothes boo-boos? Who is the strong, stalwart presence protecting the family from harm?

I hate to break it to the "every child needs a mommy and a daddy" camp, but we both are. And you know what? So are mommies and daddies in countless heterosexual families. Lots of straight mommies know how to change carburetors, and lots of straight daddies bake a killer chocolate-chip cookie.

Of the arguments in the once-mighty arsenal of opponents of marriage equality, one of the most durable -- and galling -- has been the "what about the children?" argument, the idea being that allowing two men or two women to wed would somehow deprive children of a mother or a father. While other arguments -- that marriage for same-sex couples would lead to man-hamster marriage, dissolve heterosexual marriages, or lead John Deere to paint tractors in a sassy rainbow instead of green -- have gradually been ridiculed into obscurity, the "what about the children?" argument made it all the way to oral arguments at the Supreme Court.

Children also featured prominently in the opening brief filed by proponents of Prop 8:

Proposition 8 thus plainly bears a close and direct relationship to society's interest in increasing the likelihood that children will be born to and raised by the mothers and fathers who brought them into the world in stable and enduring family units.

The U.S. Council of Catholic Bishops filed an amicus brief in United States v. Windsor, the Defense of Marriage Act (DOMA) case, saying:

[T]he People of California could reasonably conclude that a home with a mother and a father is the optimal environment for raising children, an ideal that Proposition 8 encourages and promotes. Given both the unique capacity for reproduction and unique value of homes with a mother and father, it is reasonable for a State to treat the union of one man and one woman as having a public value that is absent from other intimate interpersonal relationships.

Well, yeah, the people of California could conclude that, but they'd be pulling that conclusion out of thin air. As if California didn't already allow gay and lesbian couples to adopt. As if my daughters -- born via a surrogate -- would exist if my husband and I hadn't planned and desired them into being. And as if every reputable study hadn't found same-sex parents just as capable as -- if not more capable than -- their heterosexual counterparts.

"It has always struck me as an illogical argument that scapegoats gay people for the fact that many heterosexuals already have children outside of marriage," said Jon Davidson, legal director of Lambda Legal. "And if having children outside of marriage is such a bad thing, then why not allow same-sex couples to have their children within a marriage? Aren't those really the only children that will be affected by whether same-sex couples are allowed to marry or not?"

Indeed, as Justice Anthony Kennedy noted in Prop 8 oral arguments, those children are the only ones suffering a palpable legal harm from the inability of their parents to marry. And those claims that allowing gay and lesbian couples to marry would somehow be like peeing in the big pool of matrimony, thereby making marriage less special and discouraging heterosexual people from marrying? While a simple roll of the eyes or even a guffaw are response enough, a study published last week by two Oregon researchers examined marriage rates in all 50 states over a 20-year period. You can likely guess the conclusion they reached: "Such claims do not appear credible in the face of the existing evidence, and we conclude that rates of opposite sex marriages are not affected by legalization of same sex civil unions or same sex marriages."

As we count down the final days to a ruling, keep in mind that a win could take several permutations. "We will have to see what the court actually rules," said Davidson, "but there is no question that wins in both cases will be historic and lead to more weddings and more same-sex couples and their children being protected against tragedies and hardships in the same ways as married different-sex couples are."

But something else is also beyond question: While a loss at the Supreme Court may prolong the battle for the full protection and inclusion of same-sex families, any victory for backers of Prop 8 and DOMA will be a Pyrrhic one. One by one, their arguments have been exposed as falsehoods and have no power as American society moves toward full acceptance of LGBT rights. Their arsenal is empty.