I can’t imagine how it would feel to fear dying alone.  I can’t imagine the thought of not to being with loved ones because of legal restrictions based on a definition of marriage or parentage…

As I think about the things I cherish in life – my loved ones and the things about life that we share… laughter, tears, accomplishments and failures… I realize that I take them for granted. And I do so because it’s what we all do, or should be able to do, at least.  That’s my definition of family… and it should be everyone’s definition of family… right?  I cherish my husband, my kids, my parents, and I know that no matter what comes, I have family to rely on to see me thought whatever may come.  Family: those closest to you that share your joys and your burdens, and you take comfort knowing that you can rely on them, as they rely on you. 

It strikes me, however, that we don’t all have the ability to take such a basic principle for granted because it isn’t available to all of us.  I take these things for granted because I’m married with children, and there haven’t been any court decisions or societal objections which would invalidate my marriage since it falls under the definition of ‘traditional.’  Same-sex marriage, of course, can’t speak to this same luxury.  It is a perfect example of the framework in which certain families are unable to count on the regular presumptions of family – parents, children… and taken further, the spousal privilege, next of kin presumptions, and most horrific of all to imagine – the ability to spend the final moments with a family member in a hospital ward.

States that don’t recognize same-sex marriage or grant parentage to same-sex parents not only deny equal rights to a ‘non-traditional’ parent, but also to the children resulting from those arrangements that simply wish to support and love the only parents they’ve ever known, those that have provided them with support and care from the moment they were born.  We all know that there are several individuals that decry the boundaries of a state institution such as marriage, but there are several that support equal or rights for others, not to mention those that wish to avail themselves of the benefits and protections that marriage provides under the law. 

Why is it that such a majority of the population (if polls and statistics are to be believed) oppose same-sex marriage?  Perhaps it’s based on religious ideals, or misperception (misconception) and stereotypes regarding ‘alternative lifestyles.’  But even if that were the reason, how could that justify depriving any individual or couple of the same rights another couple has by virtue of their gender or ‘natural’ heterosexual orientation?  And worse, what about the children?  Isn’t that who we should really be focused on, even more than those that directly suffer from the inequality?

Much of the literature I read espouses the theory that marriage should only apply to male-female relationships because it’s fundamental purpose is for procreation.  As reproductive technologies advance and families are established in such a variety of ways (donor egg, donor sperm, surrogacy, etc.) regardless of the marital status or gender of the intended parents, how can that argument still carry any weight?  It would imply that only couples that are able to achieve a pregnancy naturally, without any reproductive assistance whatsoever, should be entitled to the protections of marriage since its fundamental intent is to procreate.

It seems to me that there’s a need for the antiquated perspectives to catch up to the technologies that allow new frontiers to become achievements.  The facts of life at this point are that families are created in a myriad of ways, not only through reproductive technologies, but also through divorce and re-marriage, and they happen regardless of the legal institutions that recognize or fail to recognize the relationships themselves.  And even if those opposed to same-sex marriage can find a rational basis to argue their perspective, what reasonable person can argue that the children born into ‘alternative’ families should also suffer the inequities that the bias against same-sex marriage carries along with it?  Why do the children need to suffer and be left to battle the courts and hospitals to recognize the legal protections afforded to most families, to access to their parents during times of need?  What if the ‘legal parent’ under the law dies and the state won’t grant custody to the surviving parent?  What if a family member challenges a will or power of attorney, or attempts to exclude a survivor from a funeral, or to challenge custody?

As I reflect on the gratitude I feel for my family, I almost feel guilty that I don’t have to worry about the ‘what-if’ scenarios that can cause such grief and frustration during a time of great need.  Yet admittedly, I find comfort nonetheless that I know my children and spouse will be able to visit me in the ICU if necessary, or make healthcare decisions if I am unable to do so.  And while, as an attorney, I recognize the importance of legal documents appointing designated healthcare agents and naming individuals to perform certain functions, too many individuals and families need to rely on the natural presumptions of the law in the absence of these documents.  Doesn’t it seem only right to extend the same protections to all families, regardless of their legal status?