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 Friday, December 03, 2004
WILL SSM HELP OR HARM MARRIAGE?: Jonathan Rauch replies to Maggie Gallagher
A most useful post from Maggie. In the spirit of locating precisely where our difference lies... Would it be right to say that our specific disagreement is in how we expect the culture to interpret same-sex marriage? You believe SSM will be interpreted as a (further) retreat from the idea that marriage is bound up with parents' commitment to their (biological) children, and a retreat generally from the notion that father-mother family structure is preferred? Whereas I believe that SSM will be interpreted as conveying society's preference for marriage over non-marriage as the preferred way to make a family? If so, we can both be right. Both vectors could operate and interact. Magnitudes could be large or small (I suspect pretty small). We're kidding ourselves if any of us claims to have certain knowledge of how these cultural vectors will net out. My biggest frustration in this debate is that I can't get opponents of SSM to focus on the potential risks to marriage of not having SSM. How will the culture interpret that? I agree that words and symbols matter, and if we don't have SSM, a couple of decades from now politically sensitive people (not just on the left) will avoid the word "marriage" because it will connote discrimination. They won't talk about "husbands" and "wives" at all, because that's non-inclusive language. Everyone will just be "partners." As George F. Will likes to admonish conservatives, "Cultural change is autonomous." I'm not saying Maggie should accept SSM as inevitable. It isn't. I'm saying that if we don't have SSM, the culture won't stand still. It may bypass marriage. Similarly, Maggie worries that with SSM, society and law will no longer be able to express a preference for male/female/bio-child union. I worry that without SSM, in a few years society and law will no longerbe able to express a preference for marriage. We'll all just have"unions" or "relationships" or "partnerships." Perhaps, anyway, that captures a bedrock disagreement. On faith communities, I can't blame them for worrying about government pressure to conform with SSM. M. and I probably share a worry that government is putting too much conformist pressure on private social institutions of many kinds, not just churches. But this cuts both ways. Over time, more and more religious institutions will bless same-sex unions. I'd rather they lent their blessing and prestige to marriage than to something else. And, over time, any choice the government makes is going to make some religions unhappy. In the infinite-regress debate over who's being intolerant of whom, I think the trump card is held by the actual gay couples who are denied actual marriage. The severest intolerance is to deny people the opportunity to make basic choices in life. I've never been on board with the "child/adult-centered marriage" dichotomy because I think it misunderstands the role and value of marriage. It's like saying, "Which is better, imports or exports?" I believe all marriage is child-centered, because it sets the right kind of example about how people should live and it makes people and society and children better off. It's good for kids when elderly couples without kids marry, just as it's good for elderly people when couples with kids marry. I want kids to grow up in neighborhoods where they see marriage all around them and where marriage is one of life's basic universal expectations. And preferably where sex and status are tied to marriage as well. I don't kid myself that SSM will cut theo ut-of-wedlock childbirth rate in half. But I think it sets the right kind of example, and I know that marriage can't be universally expected if it's not universally allowed. Maggie sez: "The goal of the same-sex marriage movement is publicly and visibly to assert the legal and moral equality of same-sex and opposite-sex couples. If same-sex marriage is a civil right, this necessarily and intrinsically means that the fact that sex between men and women makes babies is not an important fact, socially or legally." Sentence 1 is correct. But the second sentence should read, "If same-sex marriage is a civil right, this necessarily and intrinsically means that the fact that sex between men and women makes babies is not THE ONLY important fact, socially or legally." Big difference, yes?
HOW WILL SSM HURT MARRIAGE?: Maggie Gallagher replies to Jonathan Rauch
Here's Jonathan's question as I understand it: Since we allow some couples who don't procreate to marry, why can't we allow same-sex couples to do so without interfering with marriage's role in managing procreation? The question divides into two related ones. 1) Why do I think that allowing same-sex couples to marry interfere with marriage's role as the institution aimed at managing procreation (so that babies are a. born and b. connected to both their mothers and their fathers). And 2) Why do you expect these effects to happen with legally redefining marriage to include same-sex couples, since it hasn't happened by allowing menopausal women to marry? Let me handle the first question in this post: How will same-sex marriage harm marriage as a social institution? Logical necessity. The goal of the same-sex marriage movement is publicly and visbly to assert the legal and moral equality of same-sex and opposite-sex couples. If same-sex marriage is a civil right, this necessarily and intrinsically means that the fact that sex between men and women makes babies is not an important fact, socially or legally. It points away from the child and towards the adult couple relationship as the essence of marriage. My belief that this is logically so is buttressed by the fact that a. No same-sex marriage advocate I know of is willing to agree with me that "children need mothers and fathers." Instead they say children need love, stability, two parents maybe, but there is nothing important about connecting children to the two people who made them. b. Every court decision (Goodridge, Baker, Baer) that gets to gay marriage first disconnects marriage from procreation and also from the idea there is any one preferred family structure. This is what you have to do to get to the idea that there are no important differences between same-sex and opposite-sex couples 2. Change the meaning of words. This is really important. Words are the ways ideas are expressed. Ideas, narratives, images, are what culture consists of. Among the changes: there will be no word that means "the coming together of male and female into a one-flesh union that can create new life." This idea will be literally nameless. How do you transmit an idea for which there is no longer any word? The words "husband" and "wife" will now radically shift in their public meaning. Husband will not longer point to and contain the idea of wife. Wife will not longer point to and contain the idea of husband. The public markers of the idea that male and female are made for each other in some basic way will be eliminated. (This is why many advocates of gay marriage support gay marriage. Because it will eliminate the "norm" of heterosexuality and thereby shift heterosexual identities as well as gay ones.). Unisex parenting. If I say (as I've done for years), "Children need moms and dads, and marriage is how we get that for kids," I will be immediately rebutted by the laws of the state, which will clearly no longer be dedicated to this goal. Also I believe, if we think that same-sex couples ARE the same as opposite sex couples, the idea that "children need moms and dads" will become a marker of rudeness and probably bigotry in the public square. I don't think mothers will be much effected by the loss of gendered language around parenting, but I think fathers will be. Raising men to be good family men takes an enormous amount of social energy. Don't expect it to happen if the idea that fathers matter to their children is replaced by the idea that "the people who contract for children are the parents" and that "children need love and stability, not necessarily fathers and mothers." 3. Create legal pressures on religious organization to abandon or mute their efforts to transmit their vision of marriage to the next generation. The law can't create a social institution like marriage. It depends on civil society (families, faith communities) to endow the spare legal structure of marriage with real meaning, of a kind that can change lives. But something like 90 percent of all faith traditions view marriage as powerfully related to generativity and inherently the union of male and female. If you take the Loving v. Virginia analogy serious (SSM as a fundamental civil right), these organizations are going to come under considerable legal pressure to at least mute their faith tradition's vision of marriage and to treat same-sex couples as married. It will not take a very great amount of legal pressure to produce this result, because religious organization are large, and complex with multiple important missions (like saving souls). If the price of say, continuing to minister to the poor, or broadcasting the Bible, is muting their marriage traditions , many faithful people are going to do it. Particularly if the threat is to the tax-exempt status (as Oral Roberts University faced by forbidding interracial dating). That's what I'm worried about.
MARRIAGE AND BABIES: John Locke
[Truffled up by Maggie. --E] "Conjugal society is made by a voluntary compact between man and woman; and though it consist chiefly in such a communion and right in one another's bodies as is necessary to its chief end, procreation; yet it draws with it mutual support and assistance, and a communion of interests too, as necessary not only to unite their care and affection, but also necessary to their common off-spring, who have a right to be nourished, and maintained by them, till they are able to provide for themselves." (Second Treatise on Government)
MARRIAGE AND PROCREATION: John Howard
Re: "If sex between men and women did not make babies, marriage would not exist as a universal human institution." Maybe we could say, "If there were not two sexes, marriage would not exist," and just leave out the part about sex making babies. That would explain why marriage is for everybody, and for their whole lives, and before sex, not just for proven baby-makers during their baby-making years. As soon as people are born, they are one of the two sexes and burdened by their sex's rigid biological role in procreation, whether they will ever procreate or not. So in marriage, we create equality for individuals by joining one person of each sex together, thus canceling out gender inequality by having us all sleep in the same bed. We become fully human in marriage, and equal to all other marriages. Marriage is the atom, the smallest unit, of humanity, individuals are only sub-atomic particles. It is not just romantic but essential to the purpose of marriage that we stop being individuals and become part of a marriage. And I have to address the topic of procreation rights again: Jonathan is getting somewhere when he says: "society used marriage as a threat to cope with procreativity ('You'd better not get pregnant or make someone pregnant, because if you do you'll have to marry')." You had to commit to this person for life if you wanted to have sex, because that might make children and you'd be held responsible. You had to get a license to marry. People forget that a license is something that ALLOWS you to do something, it isn't the thing itself. A hunting license isn't a deer, and you don't get a license AFTER you kill a deer. In this case, the thing that a license allows is sex, and therefore, procreation. Fornication laws and adultery laws are part and parcel with marriage laws, and prohibit sex, and therefore procreation, without the public commitment of marriage. Marriage allows it. This is important: all marriages are allowed to procreate. A same-sex marriage would presumably have the same right, and certainly even a civil union with "all the rights of marriage" would have that right. But should a same-sex couple have the right to procreate? Should a scientist be allowed to combine the eggs of two women or the sperm of two men, to create an offspring of both partners in the marriage? I think this is the important question we should be asking. http://www.proudparenting.com/page.cfm?Sectionid=65&typeofsite=storydetail&ID=126&storyset=yes http://lesbianlife.about.com/cs/families/a/Parthenogenesis.htm http://www.jsonline.com/alive/news/apr04/223893.asp Almost all scientists believe that attempting this sort of thing would be unethical, due to the high risk of birth defects. There is also the issue of it opening the door to germline engineering. By creating the first "impossible in nature" babies, it will make the public more receptive to allowing scientists to add improvements and remove defects. This is all past what Bill McKibben calls the Enough point. We should enact a law that says that no one can attempt to procreate except by combining a man's sperm and a woman's egg. Same-sex couples would not have a right to procreate. And hey, that's what marriage licenses. And that means, if they want to procreate, they will have to do it with someone of the other sex. (It won't ban IVF, and it doesn't require that we restore illegitimacy laws or enforce fornication laws for marriage to grant procreation rights.)
MARRIAGE AND PROCREATION: Stephen White
Andrew Sullivan is a brilliant man, in my opinion, and I've always enjoyed his take on issues that affect the gay community, because he is not the typical strident activist type. However, I am in absolute agreement with Maggie that marriage is the union in which childrearing can and should take place. It is, I suspect, Biblical in origin, but I think the argument goes something like this: biological urges being what they are, and sexual attraction being a particularly strong urge, in what manner can a society foster some sort of union in which such urges can be given into, which incidentally very often results in the creation of new life? Marriage. Now, the fact that some couples choose not to have children at all, or are biologically incapable of doing so, does not invalidate the institution of marriage as fundamentally being about the sexual union of the two species and the raising of their offspring. Call gay unions whatever you like, but leave the word marriage to those whose union allows the existence of all people, gay and straight alike.
MICHIGAN BENEFITS: Don Kensler
Well, I do hope the 59% of Michiganians who voted in favor of Proposal 2 are happy. I believe the governor is following the spirit as well as the letter of the amendment, so I can't fault her decision. This decision (along with the preceding demands from Republican legislators for such a decision), however, has made plain that the intent of Proposal 2 and all similar proposals (including the FMA) is not solely to preserve marriage, but also to remove from gay couples and all gay Americans all protection of the laws and to send us back into the 1950's when we huddled in the corners of society. Anyone who pretends otherwise is being dishonest, to put it bluntly.
SAVING MARRIAGE: Columbus Dispatch editorial
[I disagree re ssm, obviously, but most of this piece isn't even about that, and it's a much better defense of marriage than I've seen from any other editorial board. Good stuff. --Eve] The successful initiative to amend the Ohio Constitution to prevent gays from marrying was a misguided effort toward a good end: preserving marriage. ... ...Children who are raised in single-parent households because of divorce or out-of-wedlock birth are far more likely to be poor, to do poorly in school and drop out, abuse drugs, contribute to teen-pregnancy statistics, or get in trouble with the law. As adults, their ability to form lasting attachments also is impaired. Examples of children being raised successfully by a single parent exist, but overall, children fare better in two-parent families. If raising children in stable, two-parent families is the goal, then the source of the problem is not gays, but heterosexuals, who beget the vast majority of children. ... That oversight has cost society dearly: When parents fail to provide stability and security for their children, many of those children become societal liabilities. The problems that result compel the government to step in, with taxpayers footing the bill. For example, one researcher estimated that each divorce costs state and federal governments about $30,000 because it results in higher demand for food stamps and public housing and higher rates of juvenile delinquency and bankruptcy, among other effects. Transforming children into productive adults is the fundamental job of every culture and society. Marriage is the most successful method ever devised to achieve that end. For that reason, defending marriage is not simply a concern of religious people. Secularists, too, have an abiding interest in it. And so does government, contrary to the view of many that marriage is a private matter in which the government has no business. ... Most ominously, even among those who chose marriage, it is seen less as an arrangement designed to meet the needs of children than as one whose purpose is to satisfy the companionship needs of the adult partners. more
NEW ZEALAND SET TO INSTITUTE CIVIL UNIONS: From 365Gay.com
New Zealand is set to enact legislation giving same-sex couples all of the rights of marriage except the name. The Civil Union Bill Thursday passed all important second reading in Parliament. It now requires a final vote before becoming law. The vote is expected to be close, but most observers believe it will squeak through despite fierce opposition by the Catholic Church. The legislation would allow same-sex couples to solemnize and register their relationships with the same recognition and rights afforded married couples. The bill was introduced by the Labor government which is allowing a free vote on it. more
LOSS OF MICH. SAME-SEX BENEFITS PLEASES, PROVOKES: From the Flint Journal
Local gay rights advocates voiced shock and dismay after hearing that about 30,000 state workers will be denied same-sex benefits that had been agreed upon in new union contracts. ... The contracts, which would have offered domestic partner benefits to state employees for the first time, will affect most of the state's unionized work force unless a court decides to the contrary before the agreements go into effect Oct. 1. Officials at the University of Michigan and Wayne State University have said they will continue to provide the benefits, The Associated Press reported. The universities say that as autonomous entities of the state, they're exempt from the constitutional amendment. But Cropsey said he's confident similar benefits will disappear from future contracts at public universities, municipalities and local school districts that now offer them. ... One of those who could be affected is Linda Campbell of Flint, a Michigan State University instructor who shares domestic partner benefits with Lucy Mercier, chair of the social work department at Saginaw Valley State University. The women have two sons, Robert, 9, and Andre, 2. "I feel betrayed by the people who said this wasn't going to happen if Proposal 2 passed," she said. "They lied, and they knew they were lying when they made their case. It was devious, underhanded and dishonest, but I guess they believe the end justifies the means." ... "There is nothing in the amendment that prevents the state or any other public employer from offering benefits to anyone it chooses," Glenn said. "But it cannot be based on singling out someone for benefits based on a homosexual union. "If the state can't afford to let an employee put a sick grandmother on their health insurance, why should they be able to single out a homosexual partner for benefits?" more Thursday, December 02, 2004
MICH. GOVERNOR PULLS DOMESTIC PARTNER BENEFITS FROM STATE CONTRACTS: From the Associated Press
Gov. Jennifer Granholm will remove same-sex partner benefits from contracts negotiated with state workers, said an aide, citing a voter-approved amendment to the Michigan Constitution that bans gay marriage "and similar unions." more
FATHERS AND SONS--MARRIAGE AND LEARNING BY EXAMPLE: From Crosswalk
[An older article, sent to me by a friend. There's an unintentional (I assume) undertone of fatalism in this piece. I'd say that it's not just marriage education classes that can help men whose parents didn't model a healthy marriage; there's also social support, marrying a woman from a strong family background, and, obviously, the basic fact that no one is predetermined to succeed or fail at making a good marriage--individuals can overcome obstacles, and learn from parents' mistakes rather than repeating them. OK, I'm getting off my soapbox now....--Eve] ...In the survey, according to a report in USA Today, 63 percent of married men grew up in traditional, two-parent homes, while 37 percent grew up in non-traditional families. The men from non-traditional families were found to be more mistrustful of women, and more likely to have "live together" relationships with women, cohabitating without benefit of marriage. ... The newspaper article noted that some marriage and family experts feel the study may be over-generalizing, or that it ignores the wide variation in non-traditional families. James Bray of Baylor College of Medicine pointed out that boys and girls who grow up in step-parent families tend to behave similarly to children from intact homes. However, the overall consensus appears to be that growing up in a healthy, stable, two-parent home makes a measurable difference in later life. Diane Sollee is director of SmartMarriages.com, a marriage education and improvement information clearinghouse. She told USA Today that many men have learned their attitudes about marriage and women by example from their fathers; and for those who had absent fathers, or who saw their dads estranged from their mothers by divorce or having a string of relationships with new wives or girlfriends -- these men have also learned by example. more
DIGRESSION: Maggie Gallagher
Andrew Sullivan makes the argument that unless our marriage laws mandates procreation (by say taking away the mariage licenses of couples who fail to do it) marriage is not about procreation, at least not as a "civil norm." Now, Deroy Murdock, in a long letter to the editor in the (dead-tree) issue of National Review, argues similarly that unless the marriage license of a spouse who cheats is withdrawn by the state, then marriage is not "about" fidelity either. Maybe there is something wrong with their logic, rather than our marriage laws. What I really think is happening here is a specific kind of legal mode of thought ( strict scrutiny in "equal protection analyses") is moving outside of its technical sphere in inappropriate ways. Marriage and family are pre-liberal social institution. They just won't fit in those boxes very well.
MARRIAGE AND BABIES: Maggie replies to Jonathan Rauch
I asked, Gay marriage advocates can say either a) marriage used to be about this [procreation], but is no longer; or b) since we allow some couples who don't procreate to marry, we can allow same-sex couples to do so without interfering with marriage's role in managing procreation. The argument goes in different directions, depending on whether SSM advocates are asserting a or b. Which is it? Jonathan responds: mostly b but a little bit a: I think the correct answer is (b) inasmuch as marriage never has been reserved for procreative couples. Marriage has never used exclusivity as an incentive to cope with procreativity (no one said, "You'd better procreate, or else you won't be allowed to marry"). More like the opposite: society used marriage as a threat to cope with procreativity ("You'd better not get pregnant or make someone pregnant, because if you do you'll have to marry"). Marriage has always been about coping with procreation among other things, and in recent years the other things have become more important relative to procreation. That's the sense in which (a) is meaningful.On the general relationship between sex, babies and marriage. I don't think of marriage as an incentive scheme for procreation. Nor do I really believe that the so-called legal "benefits" of marriage are incentives to marriage, since I think for most people they are marginal and are often negative to one or both parties. The best way to express what I mean is: If sex between men and women did not make babies, marriage would not exist as a universal human institution. It is core to the project in this sense: it is the main social problem that marriage as a public and legal institution addresses. The solution to the problem, in our culture, is to prefer that most men and women get married, because once they are in this kind of sexual union, you no longer have to worry about the fact that sex makes babies. It may or it may not, but it is no longer a social concern. (Other societies have adopted more brutal solutions for disfavored subgroups: marriage is for particular elites, the babies of peasants and slave girls can be disposed of and who cares?) Jon is absolutely correct: "This kind of sexual union," a.k.a. marriage, includes other things besides procreation, or a commitment to care for any children you make together. It includes (necessarily if you are going to fulfil the former) a commitment to love and care for each other, a pledge of mutual sexual fidelity, an economic partnership. Marriage is "the kind of sexual union" that includes these goods. So why can't same-sex couples be included in our definitions of marriage? This is becoming a very long post. Let me break here and get back in a seperate to the reasons why I think we do same-sex marriage, marriage can no longer effectively fulfil its core public purpose, as defined here.
MORE ON SUPREME CT NON-HEARING-CASE-THING: Eugene Volokh
...The Court is only entitled to review state court rulings if a federal right is involved. (For instance, if the lower court decision rejected a claimed federal right to have the state recognize same-sex marriages, then the Court would have jurisdiction, though it probably wouldn't agree to hear the case unless there were a disagreement on this federal question among lower courts.) The only federal claim in this case is that the Massachusetts' decision so far departs from the proper interpretation of the state constitution that it violates the Guarantee Clause, which says "The United States shall guarantee to every State in this Union a Republican Form of Government." But, first, the Supreme Court has long taken the view that Guarantee Clause issues are nonjusticiable, which is to say not subject to review by the courts. And, second, even if the Court might want to reverse that position, it's highly unlikely to do it in order to start correcting state judges' misinterpretations of state law. The Reason Express item is right in part -- the Justices think that if anyone is to correct the Massachusetts Supreme Judicial Court's decision, it's the Massachusetts voters. But whether the voters ultimately do decide to correct it or not is irrelevant. Longstanding and well-settled law makes clear that the Court needs to stay out of this. The case could be as clear as possible; Congress could be unable to act; the Chief Justice could be in the best of health; but the Court still wouldn't reconsider a decision such as the Massachusetts one. And that's because, yes, the states are entitled to decide this particular question on their own, at least without the Supreme Court second-guessing them on how their own constitutions need to be interpreted. Lyle Denniston (in Slate) also has a good piece about this. more
NOTE:
Due to Blogger craziness, the first post from Jonathan Rauch in the conversation between him and Maggie Gallagher never published. It's up now, and you can read it here; I expect the discussion makes more sense now! My apologies for the confusion. --Eve
NO BIG WHOOP: Lyle Denniston
Reasons to think recent US Supreme Court decision not to hear ssm case was not a big deal. Wednesday, December 01, 2004
MARRIAGE AND PROCREATION: Jonathan Rauch replies to Maggie Gallagher
Yes. That is the main question between us, and it's stated well. My view is that the "problem" of procreation is better handled with SSM than without. It does no good at all to try to set aside marriage as a special club for procreators, because (1) no society has ever done that, (2) doing it inconsistently (i.e., excluding only gay couples on grounds of infertility) is just confusing and unfair, and (3) even doing it consistently would not encourage single moms to marry--more likely the opposite. I think the cultural effect of excluding some couples--especially when those couples have kids--from marriage is just to make marriage less of a universal norm and more of a "lifestyle choice." A better path is to use many avenues to restore the preference for marriage over nonmarriage and reinforce the cultural and legal centrality of marriage. I regard SSM as one of those avenues. Here is another way, perhaps, to come at the same thing. Earlier Maggie asked: "Gay marriage advocates can say either a) marriage used to be about this [procreation], but is no longer; or b) since we allow some couples who don't procreate to marry, we can allow same-sex couples to do so without interfering with marriage's role in managing procreation. The argument goes in different directions, depending on whether SSM advocates are asserting a or b. Which is it?" I can't speak for other advocates, but I think the correct answer is (b) inasmuch as marriage never has been reserved for procreative couples. Marriage has never used exclusivity as an incentive to cope with procreativity (no one said, "You'd better procreate, or else you won't be allowed to marry"). More like the opposite: society used marriage as a threat to cope with procreativity ("You'd better not get pregnant or make someone pregnant, because if you do you'll have to marry"). Marriage has always been about coping with procreation among other things, and in recent years the other things have become more important relative to procreation. That's the sense in which (a) is meaningful. Back to Andrew S. for a moment. I read him as describing, rather than embracing, the "non-procreative adult companionship" view of marriage. He's a devout Catholic, remember. The point I take him to be making is that if straight folks want to change the culture of marriage from what it is (which is what they have made it), they should start on themselves. When and only when they're ready to make fertility/procreativity a requirement of straight marriage, they can apply that rule to their gay fellow citizens. It's a point about fairness in a liberal society, not about the ultimate purpose of marriage.
MARRIAGE AND PROCREATION: Maggie replies to Jonathan Rauch
Thanks Jon. I do think we are clarifying a few things. Every answer raises more questions: Why is marriage a uniquely good place for childraising, in your view? We share so much that identifying the difference takes some work. I don't think procreation is the "qualification" for marriage, I think it's the reason marriage exists as a universal human social institution. Procreation is the fact, marriage is the way every known society attempts to deal with the fact. I think in particular, people whose sex makes babies are in desperate, particular need of a social institution that addresses these realities and that, yes, "privileges" them. Because when societies don't address the needs for sexual regulation of those who are attracted to the opposite sex, the result is a variety of social disasters inflicted on the whole society--the ultimate being non-existence, as societies can quietly nonprocreate themselves into non-existence. cf. Western Europe and the Roman empire. Can marriage still be that social institution that addresses this urgent need if we do SSM? I don't think so. Your formulation is the most attractive, and the closest to yes, but it is also the least widely shared among SSM advocates. Andrew Sullivan, for example, translates your "kin-making" function of marriage into "non-procreative adult companionship" as the "civil norm." This latter view of marriage IS the reason for our 50 percent divorce rate and our 33 percent unmarried birth rate. If it's the "civil norm" its the civil norm we need to change, not our marriage laws. If marriage is "adult companionate relationships" then there is no reason not to divorce when you stop feeling companionable, to confine marriage to opposite-sex couples, or to couples, or to sexual unions at all. Marriage, and the rationale for marriage, pretty much disappears. (You can see this in practical terms when you talk to white unwed mothers: They love marriage, they just don't see a baby as a good reason to get married, because marriage is about the crowning of themselves as a love object.) The extent to which people are struggling with this problem by attempting to say we should leave marriage to churches and make civil unions the norm (see the discussion Eve pointed out on another website), is further evidence of the extreme weakness of our shared, public understanding of marriage, a point about which Andrew is absolutely correct. In my own view marriage isn't optional, its a necessary social institution that has to be in some general way publicly defined if its going to do what must be done. I realize I've responded more to Andrew than to you. Let me get back to the main question buried in the middle there, later (i.e. Can marriage be the social institution which addresses the "problem" of procreation if we do SSM?). If you agree that is the main question between us.
MARRIAGE AND PROCREATION: Jonathan Rauch replies to Maggie
Interesting... We're getting somewhere here. I believe the statement "marriage is about procreation" is true if and only if the statement means "marriage is about procreation among other things." If it means "marriage is about procreation and nothing else," then it is demonstrably false. Actually, even that isn't quite right. My view is that marriage is about family formation (kin-creation). Family formation is important because we procreate, but it is also important for other reasons. In my book I argue that three are central, and I now think I should have included a fourth. Marriage provides: 1) a uniquely wholesome and stable context for child rearing; 2) essential caregiving; 3) homes and domesticity (especially important for young adults, but important for everybody); 4) a safe harbor for sex (this is the one I missed in the book). All of those goods of marriage are very familiar to marriage advocates, and none of them depends upon fertility. This is why I believe, pace Maggie, that it is family structure, not fertility, we should be talking about in the SSM debate. Men and women make babies. This is indeed the background reality of marriage (in all its forms) and of everything else. But I believe Maggie makes a logical error if she interprets this fact as a sine-qua-non qualification for marriage or family-formation. Babies come from procreation, but marriage doesn't come from babies.
GENDER DIFFERENCE AND MARRIAGE: Maggie Gallagher replies to Jonathan Rauch
As always Jonathan Rauch sheds a great deal of light in the middle of a great deal of heat. I don't think the statement "Marriage is only for procreative couples" and "marriage is about procreation" are the same thing. The second statement is historically true cross-culturally and in our own marriage tradition, both in law and culture. (This latter is demonstrably true; I'm not sure if anyone wants to challenge it and force the demonstration here.) Gay marriage advocates can say either a) marriage used to be about this, but is no longer; or b) since we allow some couples who don't procreate to marry, we can allow same-sex couples to do so without interfering with marriage's role in managing procreation. The argument goes in different directions, depending on whether SSM advocates are asserting a or b. Which is it? BTW, gender difference and procreation are not separate categories, in my mind. The fact that sex between men and women produces babies, on an irregular but fairly frequent basis, is a big huge fact of human existence and human nature, coloring the moral, psychological, emotional and spiritual reality of sexual relationships between men and women. That we often repress this knowledge in pursuit of an androgynous ideal is what makes gay marriage plausible to many folk (see, "We are All Sodomites Now" by Andrew Sullivan in The New Republic.) It doesn't make it true.
MARRIAGE AND PROCREATION: Jonathan Rauch replies to Maggie
[Note: For reasons that probably only make sense in the Bizarro World that is Blogger, this post didn't publish the first time I tried to put it up. See it again for the first time! (And my apologies for the confusion.) --Eve] Justice Robert Jackson: "There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally." (Concurring, REA vs. NY, 1949) Justice Antonin Scalia: "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me." (Cruzan v. Missouri Dept. of Health, 1990)Everyone rightly accepts as a core premise of liberalism that the majority can't keep two sets of books, one for itself and one for minorities. Anyone in American politics who flouts this principle will, eventually, lose, and will deserve to. It seems to me that opponents of same-sex marriage should just relinquish the argument that marriage is only for procreative couples (if that's what they mean by "marriage is for procreation," which can mean a number of things). Historically and empirically the argument is incorrect: marriage has everywhere and always been for both procreative and nonprocreative couples. This is not a technicality or a grudging exception. All societies celebrate when post-menopausal women marry. They recognize that banning such marriages would do nothing for children or procreation. Even if the allowance for (millions and millions of) heterosexual nonprocreative marriages were a loophole or an exception, the exception should be applied evenhandedly, not selectively or self-servingly by and for the people who have the votes. See Mr. Justice Jackson, above. If the rule is that only fertile couples can marry, fine. If the rule is that only couples who actually have biological children can marry, fine. If the rule is that only couples who are rearing children (bio or non-bio) can marry, fine. Well, not fine, but you get the point: the rule that infertility disqualifies all gay couples from marriage but disqualifies no straight couples is a crass double standard that demolishes the very principle (marriage=procreation) on which it's supposed to be based. Andrew Sullivan backhandedly praises Allan Carlson for showing some consistency. Carlson really does want to prefer procreative couples throughout the whole domain of marriage, rather than merely where gay couples are concerned. This shows commendable integrity, in the putting-money-where-mouth-is department. But it won't go down well with values voters (or anyone else). I think there's a better way to put the discussion on coherent ground. I'm admittedly not the best person for SSM opponents to take advice from, but, as I say, they should just drop the claim that marriage is only for procreative (fertile) couples. Give it up. Throw it away. They would be better off talking about a stronger, if subtler, kind of argument that Maggie and Eve, among others, have made: marriage valorizes mother-father families and this serves crucial social goals. I disagree with that argument, but it is logically tenable and not hypocritical, because it grounds marriage in gender difference rather than in procreativity. On that we can have a coherent debate that respects liberal principles. An aside by way of reply to Justin Katz, who says that A. Sullivan makes the case for the Federal Marriage Amendment. Andrew can best speak for himself, but I understand him to be talking specifically about Goodridge, where the state of Massachusetts grounded its opposition to same-sex marriage in gay couples' inability to procreate. There may be (in fact, are) good arguments against court intervention (legal, social, political, etc.), but "Marriage is only for procreative couples" can't possibly be among them.
MARRIAGE AND PROCREATION: Mark Barton replies to Eve
Eve: 1. I think it's a huge mistake, and damaging to our culture, to skip from "some married couples don't have children, some don't want children, and some can't procreate" to "marriage isn't about children or procreation." Mark B.: I'm afraid that not only doesn't this clarify anything, it conspicuously evades resolving the ambiguity I criticized: what exactly does "about" mean? If "marriage is about procreation" means that procreation is so intrinsic to marriage that it fatally devalues the institution for people to marry without a good-faith expectation of procreating, and the above types of couples are married in good standing, then the conclusion is not a mistake, it's a perfectly valid reduction ad absurdum. If Eve doesn't like the conclusion she has no choice but to give up one of the premises. I suggest the obvious one togive up is the first. In fact to my knowledge, nobody has ever suggested that marriage was about procreation in that sense except in the context of an anti-SSM argument. There are plenty of other senses in which marriage could be "about" procreation, including many with real historical support, and even some that I'd happy to go along with. Eve: 2. All married couples can provide a mother and father to any child they create or adopt. SSM would treat intentionally motherless or fatherless families as identical to man/woman couples. Mark B.: Since this started from critique of Sullivan, let's wrap that aspect up first. Eve's broad objection is essentially that Sullivan is being simplistic, but Sullivan is merely pointing to the simplistic way the argument has actually been made by real, live SSM opponents. The bald fact that gay couples can't physically procreate is commonly invoked asif it were an obvious trivial disqualification in its own right. It was the primary argument in Goodridge. Invoked in this simplistic way ("about"="basic qualifying condition") it's always been transparently hypocritical, and has always gone down badly in court. It's not acondition that the straight majority would ever dream of applying to themselves, and recent case and statute law has only made the hypocrisy more blatant. When Sullivan can even point to an FRC commentator acknowledging that that's how the argument has been getting made and that it's in "serious trouble" in that form, Eve is just shooting themessenger to attack Sullivan. Moreover, Eve's attempt to refine and salvage the argument merely illustrates that it's probably unsalvageable. The refined argument amounts to, "Inability to procreate is fatally disqualifying except that it's not a problem if you could potentially be the supposedly ideal childrearing team of man and a woman." The concept of procreation makes an appearance, but it's no longer doing any actual work--it's a gear that spins without engaging anything. One might as well just drop the pretence and say that a couple can get married if and because they're the supposed ideal childrearing team of a man and a woman. Eve: If you think that's a problem, it's obviously a fairly large difference in kind--not just in degree--between the "exception" of childless married couples and the "exception" of same-sex couples. Having put the original procreation argument to bed, let's turn to what is the independent argument in terms of childrearing. This was the secondary argument in Goodridge. However I'm afraid I don't think that in 2004 we're obliged to respect as serious Eve's presentation of it above. The issue has been studied. We have actual data. The studies are by no means the last word, but neither are they junk. Opposite-sex and same-sex couples cannot be credibly described as having "obviously a fairly large difference in kind" with respect to parenting outcomes any more than blue-eyed couples versus brown-eyed ones. Now of course Eve is welcome to invoke caution and argue that there might be small but important differences, or large differences in variables that haven't been studied, but I think at this stage of the game "obviously" and "large" should be considered beyond the intellectual pale. Eve: I wonder if he'd care to revise that statement in light of the many industrialized nations whose citizens are now having babies at below replacement rate. Mark B.: Not at all. There's less procreation because what comes after it (i.e., childrearing) is as hard as I suggested it was and women have more options nowadays. The only place I may have given the wrong impression is that when I said that stage would need a hand, I didn't mainly mean marriage. It's not that marriage doesn't have a valuable role to play, but in and of itself it's not any sort of solution to the fundamental incentive problem, and never was. Marriage in and of itself isn't a significant carrot. Sex is a carrot, companionship is a carrot, economic support is a carrot, many aspects of childrearing are carrots, but none of them is intrinsic to marriage--you can get them about as easily through shacking up. To make marriage into a solution to the procreation problem, you'd need to act pretty heavy-handedly make other alternatives less attractive or non-existent, such as and especially, by restricting women's employment and banning fornication and birth control. I'm afraid you wouldn't have my support for that, and I doubt you'd find support elsewhere once people realized that that's what it would take.
"MARITAL EVOLUTION": David Blakeslee
In reading Andrew Sullivan's remarks I wish to draw the attention of the reader to the following phrase: "four decades of marital evolution." This phrase strongly implies inevitability and progress. It suggest that those who oppose gay marriage are fighting some sort of good which is developing. To use another metaphor: those who are against gay marriage are like those who attempt to impose a dictatorship on a fledgling democracy; or another way: attempting to abort a developing fetus. Mr. Sullivan is uninformed about the consequences of "four decades of marital evolution." Better phrased, these are four decades of family destruction. His phrases frame the conversation with the indefensible argument that Western Societies have been improving steadily on marriage and the family during the last four decades. What facts support such a bold assertion? They are thin at best: easier divorce laws to help people escape abusive marriages; equal property rights...are there others? The first benefit is exploited by those who are merely unhappy in marriages (it is overused) and the second is rightly called a benefit...although as applied, through no-fault divorce, women are consistently impoverished through divorce...so the application of the latter is ineffective. I wish to thank Mr. Sullivan for participating in this discourse. Although I disagree with his analysis in this situation, I find him a thoughtful and reasonable contributor on a wide variety of topics.
WEDDING-BELL BLUES: Sarah Wildman
...But the problem went far beyond what position Democrats took on the amendments. It was that they failed to discuss the rights of gay men and lesbians before the issue was co-opted by the right, that they did not anticipate the issue's key role in the presidential campaign, that they did not aggressively challenge these initiatives before they landed on ballots, and that they did not set up effective and well-funded education campaigns. But most of all, it was that they failed to frame gay marriage in a way that uncertain Americans voters could support it: that discrimination -- no matter who it is against -- is immoral, unconstitutional, and, most of all, un-American. ... ...In Oregon, Kassell tells story after story of swaying voters, including persuading a family that had a "Yes on 36" sign on its lawn to vote against the amendment. "Often it was the opportunity to have the conversation that moved people from a 'yes' to a 'no,'" says Kassell. "I think … many people had not even considered all the ways their relationship with their families were protected through marriage and how many rights and responsibilities came with that. When they looked at that they moved to the 'no' side." more
NOT INEVITABLE: Joshua K. Baker and Maggie Gallagher
...Is the gay-marriage debate over because the omnipotent young have made up their more flexible minds? Many intellectual elites think so, primarily because (we suspect) their own kids are so pro-gay-marriage. A majority of college students now favor gay marriage, and elite student opinion is pretty one-sided on this question, in part because elite opinion generally has been so lopsidedly and unreflectively pro-gay-marriage. But a detailed look at recent polls suggests a different picture for the next generation as a whole. Do a majority of young adults favor gay marriage? It depends on how the question is asked. Over the past year, polls by reputable polling companies have found the proportion of adults ages 18-29 who favor gay marriage ranging from 40 percent to 63 percent. Conversely, the proportion of young adults opposed to gay marriage has ranged from 36 percent to 54 percent. ... Perhaps most surprising (and completely unreported), is that the next "next generation" is growing increasingly opposed to gay marriage. Since 2001, Gallup has asked teenagers (ages 13-17) whether they "approve or disapprove of marriages between homosexuals." Between 2003 and 2004, teens' approval of same-sex marriage dropped 6 percentage points, while the proportion that disapproved rose 8 percentage points. In the most recent poll (August 2004) American teens opposed gay marriage by a 27-point margin, 63 percent to 36 percent. Teens' disapproval of gay marriage has now risen to about the same level as adults'. more
THEY'RE NOT WED, BUT THEY'VE MADE IT OFFICIAL: From the Los Angeles Times
When Aimee Wilson asked about adding her gay partner to her corporate health insurance plan earlier this year, her employer told her it would be easy. All she had to do was get a government body to sanction the relationship.But for Wilson, a resident of Frisco, Texas, that was going to require some fancy bureaucratic two-stepping, because the Lone Star State doesn't officially recognize same-sex partners. Wilson found her solution 1,400 miles away at West Hollywood's City Hall, where, for a $25 fee, the clerk placed Wilson and her then-pregnant partner, Margaret Richmond, on the city's domestic partnership registry in March. The couple dropped their check and a notarized application in the mail. Richmond made the company's health insurance rolls in time to deliver twins. ... But it is West Hollywood's pioneering domestic partner registry, created in 1985, that remains one of the country's best known, with its mail-in procedures listed on a number of gay rights websites. This year, the city's loose registration rules have enticed 193 out-of-state couples to register -- accounting for about 60% of West Hollywood's total domestic partnership rolls for 2004. They are gay couples who are not allowed to marry and straight couples who choose not to. Many of their hometowns -- such as Grain Valley, Mo., and Waveland, Miss. -- are cultural galaxies from the raucous boys' town bars of Santa Monica Boulevard. more
LA. HIGH COURT HEARS MARRIAGE AMENDMENT CASE: From the New Orleans Times-Picayune
In its final public hearing of the year, the Louisiana Supreme Court today will likely play to a packed house as it considers whether to uphold the Sept. 18 decision of voters to add a ban on same-sex marriage to the state Constitution. The justices will take up the state's claim that a Baton Rouge judge was wrong in October when he voided the election result on grounds that the constitutional amendment illegally had more than one purpose. State District Judge William Morvant of the 19th Judicial District ruled in response to a lawsuit filed by the Forum for Equality and other gay rights advocates who tried unsuccessfully to get the election called off. They contended the amendment goes beyond what supporters claim is its single goal: reserving marriage and the benefits and obligations that flow from it for opposite-sex couples. ... In asking the justices to overrule Morvant, the state's attorneys maintain that, although the amendment has multiple parts, all are aimed at protecting "legitimate, traditional marriage against the modern predators of same-sex marriage, 'faux marriage' and their equivalent alternatives." "It would have been fruitless indeed to ban same-sex marriage without also banning these substantially equivalent alternatives, which are merely substitutes for illegitimate marriage by another name," the state's lawyers said in briefs to the court. But the "substantially similar" language greatly troubles the plaintiffs. They say it could impair private contracts between gay and other unmarried partners that cover joint property ownership, wills and authorization of medical decisions if one partner is incapacitated. more
BIOLOGY, CULTURE, AND PERSISTENT LITERARY DYSTOPIAS: Nanelle R. Barash and David P. Barash
...Literary dystopias have this in common: They are imagined societies in which the deepest demands of human nature are either subverted, perverted, or simply made unattainable. ... In Huxley's world, sex has been separated from reproduction: The former takes place quickly, easily, and without commitment or emotional involvement; the latter, in gigantic, highly technological hatcheries wherein embryos are created and fertilized, and babies are "born." The horror of this society is so great that an outsider, John the Savage, eventually kills his lover and hangs himself in a frenzy over its lack of poetry, insensitivity to love, and indifference to death. No outlet here for anything approaching a normal biological urge; in fact, the use of the words "father" and "mother" is cause for scandal. The human need for affection is denied, and with it, much of human nature itself. The Director of Hatcheries describes any "emotional" and "long-drawn" interactions with the opposite sex as "indecorous," his lack of interest in romance contrasting with the novel's title, which was inspired by the rapturous words of Miranda in Shakespeare's The Tempest, after she falls head-over-heels, humanly in love: "Oh brave new world, that has such people in't!" It is precisely this exultant, hormonally charged intoxication that is anathema in Huxley's Brave New World, where there are no parents to love children, or sons and daughters to return the sentiment. Indeed, there is no genuine love at all. In what many might perceive as a positive departure from human nature, sexual jealousy is also abolished, since "everyone belongs to everyone else." Yet love, sex, and jealousy are primal aspects of the human psyche; to deny them is to deny our biological selves. ... Through the Party's obsession with "chastity and political orthodoxy," 1984 is almost a textbook account of how to organize Homo sapiens in ways that contradict their most basic biological needs. Not just sexual desire, but even genetic continuity is placed at risk. The prospect of staying alive through time via future generations is the motivation underlying sex, love, and indeed everything in the organic world. Accordingly, Orwell's dystopia recognizes the biologically induced terror of genetic erasure. The Party's preferred response to opponents is simple elimination: "Your one-time existence was denied and then forgotten. You were abolished, annihilated: vaporized was the usual word." That is precisely what genes -- experts as they are in self-perpetuation -- do not want. more
STARTING FROM SCRATCH: Iocaste
[Really interesting stuff in the comments, by the way. --Eve] Over at Daily Kos, there's a post advocating a position that's becoming more and more popular these days: How about we take the state out of the "marriage" business, leave the word "marriage" to churches, and replace the legal concept of marriage with "civil unions" across the board? This is an idea that many have advocated, and I agree -- only I'd take it a step further. How about we extend the civil union concept to friends as well as lovers? Cousins. Parent and child. Brother and sister. Any two people who make a commitment to share expenses and responsibilities. (It could go beyond two people, theoretically, but that might be harder to administer). The New York Times had an article not terribly long ago about the growing phenomenon of older women agreeing to live together, share expenses, and take care of each other: Older Women Team Up to Face the Future Together | ||||||||||
