Reasoning from Exceptions

IMAPP’s very interesting study on the demand for same-sex marriage brings to mind a line of argument from last week’s marriage symposium at UCLA Law School. The thesis of some speakers seemed to be that there really exists no marriage tradition worth speaking of, much less one worth preserving. This thesis is supported by pointing to evidence of practices in some cultures that diverge from the norm of marriage between men and women. Assuming the practices are correctly reported, sometimes the divergence seems great, other times less so and sometimes the divergence is not real, such as with polygamy, which involved male-female marriages (there does not seem to be any evidence that a man’s plural wives were married to one another). Thus exceptional circumstances are used to generalize outlying practices as constituting a tradition of nontradition, to which new family forms cannot pose any threat.

This also seems to be a limitation on the current effort to litigate a redefinition of marriage. Typically, a lawsuit involves a handful of same-sex couples although the remedy they seek will change the definition of marriage for the whole population (a kind of class action suit). The IMAPP study suggests that even the group on whose behalf these plaintiffs sue may turn out to be not all that interested in taking advantage of the new law.

A recent student paper by Melanie Barrett examined the use of personal stories in one of the New York marriage cases and suggests that this practice might distort the effect of the legal change sought which, of necessity, will extend far beyond the plaintiffs in a given case. For instance, where a court relies on the exceptional circumstances of same-sex couple headed households with children to reject the function of marriage in channeling potentially procreative relationships into stable forms protective of mothers and children.

This is not to say that the law might not appropriately address exceptional circumstances, but that it might be wise to treat them as exceptional.
posted by William Duncan at 4:13 PM | link

1 Comments:

At 4/27/2006 8:42 PM,  Chairm said...

>> William: "For instance, where a court relies on the exceptional circumstances of same-sex couple headed households with children to reject the function of marriage in channeling potentially procreative relationships into stable forms protective of mothers and children."

By far, most children living in same-sex households have migrated with one of their parents from a previously procreative man-woman relationship. Generously (very generously) perhaps 10% of these children were attained via adoption of non-relatives or via the help of sperm/ova/embryo suppliers.

These exceptions are very narrow indeed. They show that for adult homosexuals the vast majority, more than 95%, do not live in same-sex households with children. These examples are not just exceptions within the general populaiton, but also within the adult homosexual population.

 

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