ROBERT SIEGEL, HOST:
Listening to the Supreme Court arguments on same-sex marriage yesterday had to make you wonder. When advocates and justices talked about marriage and the family, was it marriage and the family 21st century-style or the gauzy nostalgia of the kind of family Dick and Jane grew up in long ago? Well, Joanna Grossman was listening. She's a law professor, a columnist and an author of the book "Inside The Castle: Law And The Family In 20th-Century America." Welcome to the program.
JOANNA GROSSMAN: Thank you.
SIEGEL: There was a line of argument yesterday that heterosexual couples, unlike same-sex couples, join in marriage for the benefit of their children. What did you make of that argument?
GROSSMAN: I think the emphasis on marriage as being the tie to procreation and the way that we tie adults to children is a bit of an outdated concept given the way modern families are formed.
SIEGEL: How would you say family formation has changed in recent decades in America?
GROSSMAN: It's changed in almost every way imaginable, right? So we can have children born to unmarried parents, which is about 40 percent of the births in the modern United States. You can have children conceived by married or unmarried couples but using reproductive technology and using gametes donated from either one or two other people. And you can have gay and lesbian families that are formed in a variety of different ways. But the way in which families are formed is as varied as anything today.
SIEGEL: I want to play you a clip from yesterday's argument from John Bursch, the former solicitor general of Michigan, who argued in favor of the state's right to limit marriage to a man and a woman. One argument he made against same-sex marriage was that redefining marriage entails a critical delinking. Here's what he said.
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JOHN BURSCH: When you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences.
SIEGEL: I'm hearing you say that delinkage has been happening steadily for some years now.
GROSSMAN: That delinkage is all but fully complete. If you look at the law of parentage, which is this idea of how you tie particular adults to particular children, right - identifying legal parents - it used to be based almost exclusively on marital status, end of story.
If you look at that entire area of law today, marital status plays the smallest role of any possible factor. We're much more likely to determine parentage based on intent to parent or biology or function as a parent. So I think that delinking absolutely has already occurred. And one of the strongest pieces of evidence of that is of course the number of gay couples who are raising children already today in the United States.
SIEGEL: Justice Alito raised the question of polygamy. And the lawyer opposing bans on same-sex marriage said that would raise all kinds of complications, whether the divorce of one wife would leave custody of children with another wife. So she dismissed the relevance of that. But is that fair? I mean, we do have a polygamous offshoot of the Mormon Church in this country. We have immigrants from places where polygamy is common and legal. Can it simply be ignored?
GROSSMAN: I don't think it can be ignored, but there is pressure in family law generally to lift what we call the rule of two - this idea that a child can never have more than two parents. California has done that explicitly by statute recently and allowed for multiple - more than two parents.
SIEGEL: Is that because of adoption, divorce and remarriage and that sort of thing? Or is it because of complicated more than dual relationships?
GROSSMAN: It's more a result of more complicated forms of reproduction. But I think it's a recognition that families really are very different. Justice O'Connor said in a case many years ago - Troxel v. Granville - that there's really no such thing as the average American family. And that's really at the core of what was going on in the court yesterday.
SIEGEL: Professor Grossman, thank you very much for talking with us today.
GROSSMAN: Thank you for having me.
SIEGEL: Joanna Grossman is a law professor at Hofstra University. She's also a columnist at the legal website Justia.
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