In the winter of 2010, well-known conservative scholar Robert George (“this country’s most influential conservative Christian thinker[i]”) released an article entitled “What is Marriage” in the Harvard Journal of Law and Public Policy[ii]. This landmark article opposing same-sex marriage has been hailed as “outstanding work” and “one of the BEST arguments there is out there,[iii]” amongst other praise[iv] by organizations such as the American Principles Project, First Things, and the Love and Fidelity Network. The authors explicitly take on arguments by pro-SSM scholars Andrew Koppelman and Andrew Sullivan. They also engaged in a back-and-forth after publication with well-known SSM scholar Kenji Yoshino[v]. Their article is also one of the more recent and sophisticated challenges to the movement to legally recognize same-sex unions as marriages.
The article begins by describing the conjugal view of marriage, which the authors expound as the union of a man and a woman who make a commitment to each other which is inherently fulfilled by rearing and bearing children together, among other elements.[vi] The link to children’s welfare provides a consequentialist basis for the state’s interest in recognizing and regulating it. After defining the revisionist view of marriage, the authors outline their defense of legal recognition of the conjugal view. Because of the importance of their argument, I will dedicate space here to presenting much of the authors’ defense. Following the presentation, I will articulate some counters to their defense, then rebut some of those counters.
The authors argue that the common good of society is promoted by “legally enshrining the conjugal view of marriage” and that the common good of society would be damaged by legally enshrining the revisionist view[vii]. They contend that the traditional definition has both a philosophical basis (it recognizes what marriage really is) as well as a consequentialist or pragmatic basis. The revisionist construct, on the other hand, is not as defensible either philosophically or pragmatically.
The authors argue that discriminating against same-sex unions is just, because every law makes distinctions, and gender is a genuinely relevant distinction. The authors concede that antimiscegenation was about a classification not rationally relevant to marriage: race. They also claim that antimiscegenation was about whom to allow to marry, rather than what marriage is. They also claim that antimiscegenationists did not argue that black/white marriage was impossible, but instead sought to prevent the possibility of its realization to the end of maintaining white supremacy.
The authors contend that revisionists are, rather than merely expanding the pool of those eligible to marry, seeking to “abolish the conjugal conception of marriage in our law and replace it with the revisionist conception.[viii]” They also insist that the analogy to antimiscegenation necessarily relies on the assumption that any distinction is unjust discrimination. To illustrate the problems of the assumed revisionist basis for marriage, sexual and romantic desire, they show the example of how such as justification would legitimize bestiality as a marriage. The authors claim that revisionists who wish to admit same-sex couples but exclude incest must accept three tenets:
1) Marriage is more than merely a contract
2) The state is justified in only recognized real marriages as marriages
3) There is no general right to marry the person you love; rather, there is the presumptive right to not be prevented from forming a real marriage wherever one is possible
Because the state cannot alter or choose the moral reality of real marriage, any radical reinvention of legal marriage obscures that moral reality[ix]. Thus, the authors claim that only one question can settle the debate: What is marriage?
The answer to the question is the conjugal view and involves elements of comprehensive union, a special link to children, and norms of exclusivity, monogamy, and permanence. Interestingly, the authors claim (1) that the conjugal view requires organic bodily union and (2) that the body is a “real part of the person, not just his costume, vehicle, or property.[x]” Sexual exclusivity and intercourse are mandatory to marriage. The authors construe a union as “mutual coordination… toward a good.[xi]” Bodily union recognized through coitus is oriented towards conception even when such does not occur. Because two men or two women cannot achieve bodily union because of the lack of a good to aim for, their union cannot be marital.
George and his two coauthors concede that having children is not necessary to make a marriage[xii]. They claim that marriage is uniquely oriented to having and rearing children. Because marriages are consummated by coitus and because coitus by nature is fulfilled by conception, there is a special link between real marriages (conjugal male/female) and bearing, rearing, and educating children. This link survives even if fulfillment (conception) is never realized, i.e. in the case of infertile couples. Because the common law tradition does not recognize oral or anal sex, no same-sex couple is capable of consummating a marriage. The authors also point to sociological evidence suggesting that children raised by wedded biological parents in intact homes fare best.
The authors note that it is sexual complementarity, rather than sexual orientation, which suffices as a basis for real marriage’s orientation toward children. Additionally, marital norms of permanence and exclusivity also derive from the comprehensive, children-oriented union that is marriage. Because same-sex relationships lack the orientation towards children, they also lack the inherent norms of exclusivity and permanence[xiii].
In their “Weakening Marriage” section, the authors claim:
“[R]ecognizing same-sex unions would mean cutting the last remaining threads. After all, underlying people's adherence to the marital norms already in decline are the deep (if implicit) connections in their minds between marriage, bodily union, and children. Enshrining the revisionist view would not just wear down but tear out this foundation, and with it any basis for reversing other recent trends and restoring the many social benefits of a healthy marriage culture.[xiv]”
The further erosion of marital norms will adversely affect children and vulnerable adults. Specifically, recognizing same-sex partnerships as marriages would lead to the absence of reinforcing the ideas that (1) children need a mom and a dad, (2) men and women on average bring different gifts to the parenting table, and (3) boys and girls benefit from fathers and mothers in different ways. Obscuring the connection between marriage and parenting erodes the ideal of children being raised by their biological mother and father. Every human society once believed that marriage is a male-female union, according to the authors[xv]. Recognizing same-sex unions as marriage obscures the moral truth about marriage.
Answering the challenge of infertile couples, the authors claim it is easy to justify the recognition of infertile couples as being truly married while not recognizing same-sex partnerships. Noting that any coitus seals a marriage, even if conception doesn’t occur, the authors note that marriage can exist apart from children. They also concede that an obviously infertile couple can live out the features and norms of real marriage and thereby contribute to a healthy marriage culture[xvi]. The more effectively the law teaches the truth about marriage, the more likely individuals are to form marriages and respect marital norms, thus increasing the social benefits that derive from real marriage.
Though the authors continue, in the interest of selecting a digestible excerpt I will abort the presentation here. The defense provided is a serious, substantial, and sophisticated one. A subset of possible, tentative counters to the authors’ defense thus far includes:
· The authors assert that analogies to antimiscegenation rely on a conclusion that any distinction is unjust discrimination (page 250). This may not be a fair representation, as some who use the analogy would merely claim that gender is equal to race in its irrelevance to marriage while preserving other distinguishing factors such as relatedness and number of partners.
· The authors’ argument relies on the concept of “organic bodily union” (“bodily union” comes up 27 times in the paper). However, this concept is a fiction[xvii]. There is no such thing as bodily union in the context the authors use it- even in coitus, there are two very distinct and separate bodies merely in close proximity. A greater number of cells are in close proximity when two people spoon or when two lesbians have sex than in many forms of man-woman vaginal intercourse. By contrast, bodily union does take place on occasion when two embryos fuse before implantation in the uterine wall to form a single embryo. Also, sperm and egg fuse during syngamy; but, since the authors claim that infertile couples can and do engage in organic bodily union, it cannot be fertilization to which organic bodily union refers.
· The authors frequently characterize organic bodily union (presumably penis/vagina intercourse) as being uniquely oriented towards reproduction[xviii]. However, the vast majority of such incidents are non-reproductive, as females are typically only fertile one day out of every 28-day cycle (and even the majority of intercourse during the fertile period does not result in reproduction). Other animals restrict their mating behaviors more narrowly to the fertile period, suggesting an additional purpose for human sex (pair bonding or pleasure constitute two viable alternatives, since dopamine and the bonding chemical oxytocin are released during sex and, particularly, orgasm). In any case, it is the union of egg and sperm which is proximally needed for reproduction: sexual intercourse is neither sufficient nor necessary to that end.
· The authors may bifurcate by assigning a primary or sole purpose to biological acts or organs (such as by claiming that coitus is for reproduction, analogizing to the stomach’s purpose being to digest). A quote: “But what is it about sexual intercourse that makes it uniquely capable of creating bodily union? People’s bodies can touch and interact in all sorts of ways, so why does only sexual union make bodies in any significant sense “one flesh”? Our organs—our heart and stomach, for example—are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. It follows that for two individuals to unite organically, and thus bodily, their bodies must be coordinated for some biological purpose of the whole. That sort of union is impossible in relation to functions such as digestion and circulation, for which the human individual is by nature sufficient. But individual adults are naturally incomplete with respect to one biological function: sexual reproduction. In coitus, but not in other forms of sexual contact, a man and a woman's bodies coordinate by way of their sexual organs for the common biological purpose of reproduction.[xix]” Many biological structures and actions have multiple effects and thus, perhaps, multiple purposes. The stomach functions as a cushion for surrounding organs, a shield for the heart from some external harms, a part of the circulatory and lymphatic systems, and as a filter for potential poisons in addition to being a stop for food in its long journey through the alimentary canal. It is difficult to determine which of all these, if any, is a primary purpose of the stomach. The mouth is typically considered a digestive organ (used to consume and masticate), but may also be applied to speaking or kissing: which of these three is the “good” or “function” of the mouth? If measured by the frequency that an organ is applied to a particular function, then a penis is perhaps foremost a urinary instrument and second a release canal for excess semen, and only in distant third a conduit for a reproductive payload. A vagina may become foremost a canal for menstrual sloughing and secondarily an instrument of pleasure, and third a conduit for reproductive material. Alix Shulman wrote: “We are taught that the reason for the differences, and the use to which the sex organs are put, has to do with making babies. This is a lie. In our society only occasionally are these organs used to make babies. Much more often they are used to produce sexual pleasure for men….[xx]” In any case, it is unclear what reasoning the authors use to support either (1) the contention that coitus has a primary function it is oriented toward or (2) how the authors chose the reproductive function from amongst competitors.
· The authors state (larger excerpt quoted immediately above): “That sort of union is impossible in relation to functions such as digestion and circulation, for which the human individual is by nature sufficient. But individual adults are naturally incomplete with respect to one biological function: sexual reproduction. In coitus, but not in other forms of sexual contact, a man and a woman's bodies coordinate by way of their sexual organs for the common biological purpose of reproduction.[xxi]” They also claim: “a husband and wife's loving bodily union in coitus and the special kind of relationship to which it is integral are valuable whether or not conception results and even when conception is not sought. But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate. This is a clear sense in which their union cannot be marital, if marital means comprehensive and comprehensive means, among other things, bodily.[xxii]” The authors also debunk pleasure as a candidate alternative purpose, relying on the argument that “The good must be bodily, but pleasures are aspects of experience, [xxiii]” a potentially problematic contention considering the earlier claim that the mind/consciousness is integral with, rather than separate, from the body[xxiv]. Though I could counter by making a strong case for pleasure, I will focus instead on another, arguably stronger candidate. Absent from the authors’ discussion is the strong competing candidate of attachment. Attachment is an arguably superior alternative to reproduction as a function or purpose that coitus is oriented towards. Oxytocin, often called the love hormone, is associated with a number of non-independent behaviors such as orgasm, social recognition, pair bonding, and sexual arousal[xxv]. (For more on oxytocin, see (1) Helen Fisher’s Why We Love: the Nature and Chemistry of Romantic Love, (2) Susan Kuchinskas’s The Chemistry of Connection: How the Oxytocin Response Can Help You Find Trust, Intimacy, and Love, and (3) LouAnn Brizendine’s The Female Brain). Like reproduction, oxytocin-caused attachment typically requires a partner. Because our very bodies are built for love and attachment to a partner, “individual adults are naturally incomplete with respect to [this] biological function,” to borrow from the authors’ language. Reproduction is not the only biological function that requires a partner. Like reproduction, oxytocin-induced bonding is a frequent consequence of sex (a more frequent consequence, in fact). Like reproduction, oxytocin-induced bonding provides a source for norms of permanence and exclusivity. Like reproduction, oxytocin-induced attachment is important to child welfare; reproduction gets the child into the picture, while attachment helps stabilize the bond between the couple raising the child (whether or not the raising couple is also the biological parent pair). This is an important point, as the social science evidence the authors cite points to “intact homes” and “low conflict marriages” and “wedded parents” alongside biological parentage as important predicates of positive child outcomes. Thus, the “the marital relationship's natural orientation to children” may be due to the bonding outcome of sex, rather than or in addition to its reproduction outcome- and this route can include, rather than exclude, same-sex couples, from the point of view of at least a species of the conjugal view of marriage the authors support. To illustrate, look at how the author’s argument reads with “reproduction” replaced with “pair bonding:” “Marriage, valuable in itself, is the kind of commitment inherently oriented to the bearing and rearing of children; it is naturally fulfilled by pair bonding. This orientation is related to the fact that marriage is uniquely embodied in the kind of act that is fulfilled by pair bonding: coitus.[xxvi]” Sex results in oxytocin release much more regularly than it does reproduction; indeed, almost all sexual activity and orgasm results in oxytocin release in both men and women[xxvii], which in turn facilitates the trusting, attachment, and bonding of the pair. Thus, there is a strong case to be made that intercourse (whether same or opposite sex) is either pluralistically oriented or, if a primary purpose must be chosen, oriented toward bonding. Either alternative vitiates the strength of the author’s claim, which only operates to exclude same-sex couples while including opposite-sex ones by relying on reproduction rather than bonding as the “function toward which their bodies can coordinate[xxviii]” during sex.
· The authors write: “If human beings reproduced asexually, then organic bodily union—and thus comprehensive interpersonal union—would be impossible, no kind of union would have any special relationship to bearing and rearing children, and the norms that these two realities require would be at best optional features of any relationship. Thus, the essential features of marriage would be missing; there would be no human need that only marriage could fill.” Again, the human need for a pair bond would be filled by marriage even in a world of asexual reproduction. Only marriage lies at the confluence of the three human love drives: companionate, sexual, and romantic[xxix]. Oxytocin initiates maternal behaviors and solidifies pair bonds in a way likely to stabilize a household. Because rearing children is independent of bearing children in this hypothetical, and because as the authors assert low conflict, stable married families rear children better than high conflict, unwed, and single-parent homes, there may still be a relationship between a permanent, sexual, committed marital union and rearing children. Coincidently, this construct of marital union can include same-sex couples.
· Because infertility is often inherited (e.g. through a recessive allele frustrating meiosis), for at least some opposite sex couples that have intercourse, their union cannot be said to be inherently oriented towards reproduction. An example would be a postmenopausal woman seeking to marry: her infertility is a direct consequence of inherited senescence, and her marital coitus is not oriented towards reproduction, though pleasure and pair bonding persist as candidate functions (she and her husband also retain an ability to rear children that on average may exceed that of single parent and unwed homes). Additionally, vaginal intercourse is not unique among human acts oriented toward reproduction[xxx]. The masturbation of a husband to produce sperm used in IVF, the journey of the wife to the lab for egg extraction, and the act by a lab technician of injecting sperm into an ovum frustrates the “uniqueness of human acts oriented toward reproduction[xxxi]” claim, as they belong on the list next to coitus. Last, the increasing incidences of artificial reproduction and contraception impede the conclusion that modern day male-female genital intercourse is uniquely oriented towards reproduction (i.e. vaginal sex occurs without reproduction, and reproduction occurs without vaginal sex). Said LDS feminist and BYU professor Valerie Hudson: “What we understand from our doctrine is that the telos of marriage is to ground every human family in real, lived, embodied gender equality. And then, as a consequence, all reproduction would occur only within that context of gender equality. If the ideal were lived, then every son and daughter of God would be born into a family that lived gender equality, and thus each would learn how to form such a relationship when they themselves came of age. Reproduction is the fruit, not the root, of what God intended in establishing marriage. That is why it doesn’t matter who’s fertile, and whether a marriage of infertile people is a marriage is beside the point.[xxxii]”
· The conjugal view the authors support excludes many married couples from the institution (presuming, of course, that marriage is what is currently legally and socially recognized as such). The authors included the sealing and renewing of their union with conjugal acts as a part of the conjugal view of marriage[xxxiii]. Thus, where one or both parties lack the requisite genitalia or control over the same such that coitus is impossible, theirs is not a real marriage, even though most people and the law regard them as married. Examples include (1) a coitus-incapable minority of couples where one partner is quadriplegic, (2) marriages where the male’s penis is absent due to injury, and (3) marriages between an androgen insensitivity syndrome individual and that individual’s spouse (where the vagina, penis, and/or clitoris developed abnormally or not at all). In this same vein, a reader is left to wonder which is a “real marriage”: an intersex (gender indeterminate) person and a man, or an intersex person and a woman? Perhaps neither or both? Would the determination turn on the intersex person’s sexual behavior, genitalia, genes, neither, or some combination? The revisionist view which merely adds same-sex couples to the existing class of recognized marriage holds more potential for answering these questions than the traditional one, as same-sex or perhaps even genderless pairings may be appropriately recognized as marriages. Because it requires a male and a female, it is less clear how the authors’ conjugal view would or should resolve these questions, since some would classify at least some subset of intersex persons as being both male and female, while others would classify that same subset as neither male nor female.
· Sexual complementarity is construed by the author as the complementarity between bodily structures rather than complementarity of sexual orientation[xxxiv] (because the authors did not directly address transgender issues, I will avoid analyzing their position on that issue cluster). However, much evidence suggests that sexual orientation, including homosexual orientation, is a subset of the sex determination of the brain[xxxv]. If this is true, on what basis does the author’s choice of biologically determined structure (penis/vagina) succeed over biologically determined orientation as the basis for complementarity, especially when both are subsets of sex determined traits? Indeed, the complementarity of orientations in marriage is a highly conserved traditional aspect, if perhaps somewhat less conserved than opposite-sex vaginal intercourse (since historically it is likely that (1) most pairings have been between two straight partners and (2) many homosexually oriented people have married and engaged in coitus). Orientation complementarity (where each partner in a couple is oriented to the other partner’s gender) is arguably as oriented toward bearing and raising children as genital complementarity, for two reasons. (1) When orientation complementarity brings together men and women, it often results in children via natural reproduction. (2) Complementary orientation couples (both mixed and same gender) arguably form and maintain more stable/lower conflict households, on average, than their mixed orientation couple counterparts[xxxvi]; and as the authors note, low conflict is a significant predictor of positive child outcomes[xxxvii].
· The authors assert an overly simplistic view of reproduction, as evidenced, for instance, by their claim that each child has only one mother and only one father: “Children, likewise, can have only two parents— a biological mother and father, there are two sexes, one of each type being necessary for reproduction.[xxxviii]” Putting aside the extant reality of children that result from fusion events (two independent sets of gametes fuse downstream, resulting in a single person with two sperm and two eggs contributing to its genes), it will very like be possible soon for an individual to have three biological parents[xxxix] (e.g. one person contributes an oocyte “shell,” a second a haploid nucleus, and a third the second haploid nucleus). It is also likely that the technology to support asexual reproduction (e.g. cloning) and same-sex-two-biological-parent reproduction (as was successfully demonstrated in a mouse with two and only two biological parents, two male mice, just a few months ago[xl]) will soon be available. Already some same-sex couples mix their sperm, fertilize a donated egg, and implant the zygote into a female friend who agrees to gestate the child, resulting in the type of three parent situation courts often struggle with[xli]. Because male somatic cells contain all the genetic instructions needed to make a human egg, same-sex male couples may be able to reproduce using merely a cheek swab from one partner and sperm from the second. (Because males are the heterogametic sex, and because the second X of chromosome 23 in females is lyonized into an unused Barr body, in follows that all the genes needed for oogenesis are necessarily contained in adult male diploid cells. Given the proper hormone/nutrient/transcription factor cocktail, totipotent cells [which as the name implies can become any of the several hundred distinct types of human cells, including eggs] harvested from gay partner A could be stimulated to become eggs. The sperm of partner B could fertilize the eggs from partner A[xlii].) It is also feasible to fuse two sperm (one from each partner), then place the resulting diploid nucleus into an enucleated totipotent stem cell from one of the men. It seems reasonable to conclude that the authors’ contention relies upon the unique orientation of heterosexual sex to reproduction[xliii]; thus, the argument may fail if the biology of reproduction reveals a contrary reality.
· If reproductive capacity is not necessary for the organic bodily union the authors describe, then might not anal sex by a man/woman or by two men fit the authors’ explanation for why infertile couples’ sex makes their union a real marriage? “[T]he behavioral parts of the process of reproduction do not lose their dynamism toward reproduction if non-behavioral factors in the process—for example, low sperm count or ovarian problems [insert absence of an ovary here, the typical condition of males]—prevent conception from occurring, even if the spouses expect this beforehand. As we have argued, bodies coordinating toward a single biological function for which each alone is not sufficient are rightly said to form an organic union.” If sex is oriented toward reproduction—which could be inferred by the fact that in males such ends in ejaculation of sperm, a typically necessary component of reproduction—then anal sex, which necessarily requires two people whose parts fit, is no more nor less oriented towards reproduction than intercourse by an infertile male and his female partner (be their intercourse anal or vaginal). Anal sex is well evidenced historically[xliv] and has taken place in both man-man and man-woman pairings. Like the vagina, the anus has multiple functions, and some of these cannot be solely individual any more than vaginal ones. Because of their infertility, infertile couples’ sex (and indeed most sex by fertile couples outside day 14 of the menstrual cycle) cannot be said to be coordinated towards the biological function of conception. “Dynamism toward reproduction” is not very meaningful outside the biological reality of reproduction, which always necessarily includes non-behavioral biological factors, most especially the actual union of gametes. Conception is oblivious to how the gametes came to be in proximity; similarly, the absence of conception is equally assured whether it is an infertile woman-woman or an infertile woman-man couple copulating. Said Jonathon Rauch in response to proponents of a similar argument: “Their real position is that the possibility of procreation defines marriage when homosexuals are involved, but not when heterosexuals are involved. To put the point more starkly, sterility disqualifies all homosexuals from marriage, but it disqualifies no heterosexuals. So the distinction is not pro-procreation (much less pro-children) at all. It is merely antihomosexual.[xlv]” Kenji Yoshino agrees on one point: “the capacity (or desire) to procreate is not a principled ground on which to define same-sex couples out of the institution of marriage while pretending to keep all opposite-sex couples inside it.[xlvi]”
· An answer to the author’s central question, “What is marriage?” may be found in the Perry v. Schwarzenegger opinion, which explains not only what the right to marry means but also what marriage is[xlvii]: “Marriage has retained certain characteristics throughout the history of the United States. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. The spouses must consent to support each other and any dependents. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun, J, dissenting). Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 US at 567. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381 US at 485-486…. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed. The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.” This construction excludes, in a principled way, what George et al illustrate as non-marital arrangements (e.g. polyamorous unions). It includes norms, such as (1) stability and (2) support of each other and dependents. Last, it holds open the possibility of recognizing some same-sex couplings as marriage. I wonder what contentions the authors would raise to this view of marriage, which competes on the same grounds (it both excludes and provides a basis for norms) with the conjugal view they favor.
This concludes our small subset of tentative possible counters to the authors’ defense of the conjugal marriage view. I point out that, to my knowledge, many of the counters are original; i.e. I have not seen them elsewhere (e.g., asserting attachment as a competitor to reproduction for the orientation/purpose/function of coitus). Though the authors themselves are obviously not available to respond, I borrow their rebuttals to related or similar counters:
· The criticisms fail to answer the central question of what marriage is, and instead merely criticize the authors’ affirmative answer to that central question[xlviii]. It is easy to criticize: it is difficult to construct.
· “[T]hose who would redefine civil marriage, to eliminate sexual complementarity as an essential element, can give no principled account of why marriage should be (1) a sexual partnership as opposed to a partnership distinguished by exclusivity with respect to other activities (including non-sexual relationships, as between cohabiting adult brothers); or (2) an exclusive union of only two persons (rather than three or more in a polyamorous arrangement). Nor can they give robust reasons for making marriage (3) a legally recognized and regulated relationship in the first place (since, after all, we don’t legally recognize or closely regulate most other forms of friendships).[xlix]” The first contention is strongest when compared against the view of marriage derived from Perry.
· If the logic that justifies recognizing same-sex partnerships as marriages destroys marriage as a monogamous and sexually exclusive union, then it is self-defeating because the argument for a radical reformation undermines the justification for regulating marriage at all[l].
· Contentions to the conjugal view risk devaluing the ideal that children should be raised by a mother and father wherever possible.[li]
· “If there are no principled grounds for marital norms, then it must be unjust to fail to recognize any relationships that are just as socially valuable as those that we do recognize.[lii]” Exclusivity, permanence, and monogamy all rely on and flow from and only from the conjugal view.
This concludes the partial presentation of an anti-SSM defense, a discussion of a subset of counters to that defense, and a brief treatment of some rebuttals to the counters.
SSM may negatively affect children
For millennia of history, children have generally been raised primarily by their biological parents. A number of studies find that two biological parent arrangements produce superior child outcomes, on average, than other arrangements such as single-parent homes[liii]. Because same-sex couples are usually not both the biological parents of a child, they may not be as effective as opposite-gender biological couples at parenting:
“Millenia of human experience tell us that marriage is society's way of ensuring that the adults responsible for creating children take responsibility for raising them. When we recognize marriage between a man and a woman in our laws, we are endorsing that idea.[liv]”
Some additionally perceive an argument for a type of precautionary principle, asserting that care should be taken before broadly embracing a marriage redefinition (especially in the area of collecting data about the effect of marriage redefinition on children)[lv]. Both supports merit consideration.
A possible weakness in the contention about two biological parent households may be that very few of those studies directly compared opposite gender couples and same gender couples- thus, there is little basis to presume the superior parenting of opposite gender couples. Also, even if opposite sex couples do parent better than same sex couples, such may not suffice to prohibit SSM. If rich, educated couples on average parent better than poor, uneducated couples, for instance, few would argue that poor, uneducated couples should not be permitted to marry.
Additionally, at least some studies suggest that same-sex couple households parent as well or better on average than opposite-gender households[lvi]. On the other hand, speaking to a related question, Robert George asserts[lvii]:
“Given the marital relationship's natural orientation to children, it is not surprising that, according to the best available sociological evidence, children fare best on virtually every indicator of wellbeing when reared by their wedded biological parents. Studies that control for other relevant factors, including poverty and even genetics, suggest that children reared in intact homes fare best on the following indices:
· Educational achievement: literacy and graduation rates;
· Emotional health: rates of anxiety, depression, substance abuse, and suicide;
· Familial and sexual development: strong sense of identity, timing of onset of puberty, rates of teen and out-of-wedlock pregnancy, and rates of sexual abuse; and
· Child and adult behavior: rates of aggression, attention deficit disorder, delinquency, and incarceration.
Consider the conclusions of the left-leaning research institution Child Trends: ‘[R]esearch clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes.... There is thus value for children in promoting strong, stable marriages between biological parents.. . .[I]t is not simply the presence of two parents,... but the presence of two biological parents that seems to support children's development.’
According to another study, ‘[t]he advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.’ Recent literature reviews conducted by the Brookings Institution, the Woodrow Wilson School of Public and International Affairs at Princeton University, the Center for Law and Social Policy, and the Institute for American Values corroborate the importance of intact households for children.”
Though the issue is hotly contested, the American Psychological Association suggests that the predominance of research to date indicates that “there is a consensus among credible scientific researchers which confirms the abilities of gay and lesbian persons as parents, and finds positive outcomes for their children. Statements by the leading associations of experts in this area reflect professional consensus that children raised by lesbian or gay parents do not differ in any important respects from those raised by heterosexual parents. No credible empirical research suggests otherwise[lviii]. If gay, lesbian, or bisexual parents were inherently less capable than otherwise comparable heterosexual parents, their children would evidence problems regardless of the type of sample. This pattern clearly has not been observed.[lix]” The inherent parenting capability exception here would be breastfeeding with gay men- though men can lactate[lx], I know of no gay couples who have undergone the intervention needed to enable breastfeeding. Excerpts from studies and two statements:
Study 1: "According to their mothers' reports, the 17-year-old daughters and sons of lesbian mothers were rated significantly higher in social, school/academic, and total competence and significantly lower in social problems, rule-breaking, aggressive, and externalizing problem behavior than their age-matched counterparts in Achenbach's normative sample of American youth.[lxi]" -17-year national longitudinal lesbian family study
Study 2: Also in 2010, "children raised by lesbian parents (mostly comothers) have been found across a large number of tests to be generally similar to children raised by heterosexual parents on dimensions of psychological well-being, peer relations, and social and behavioral adjustment.[lxii]"
Statement 1: The Canadian Psychological Association has stated in 2006: “The literature (including the literature on which opponents to marriage of same-sex couples appear to rely) indicates that parents’ financial, psychological and physical well-being is enhanced by marriage and that children benefit from being raised by two parents within a legally-recognized union. As the CPA stated in 2003, the stressors encountered by gay and lesbian parents and their children are more likely the result of the way in which society treats them than because of any deficiencies in fitness to parent.[lxiii]"
Statement 2: “In July 2006 the American Academy of Pediatrics issued the following statement: ‘There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than twenty-five years of research have documented that there is no relationship between parents’ sexual orientation and any measure of a child’s emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with one or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents.[lxiv]’”
Many would argue that same-gender families merit the same treatment and consideration as parent candidates as opposite-gender families. Based on the observed outcomes to date, this parenting-capacity argument is not far-fetched:
“[C]hildren can and do thrive in both contexts [same and opposite sex two parent households], and some of the differences noted in the literature do not establish that children are better off when raised by parents of different sexes.[lxv]”
Children in opposite-sex households stand to benefit from SSM as well:
“What children, all children, need is protection from the bleak allure of a culture without commitment and a future without marriage. They need to grow up taking for granted that love, sex, and marriage go together—for everybody. They need to live among friends and neighbors, including gay friends and neighbors, who are married, not shacked up. No matter how you look at things, it is hard to see how a marriageless homosexual culture sends a good message for children or improves their social environment.[lxvi]”
The claim was made by Bill Duncan above[lxvii] that recognizing marriage between a man and a woman endorses the idea that adults responsible for creating children take responsibility for raising them. This ideal may not threatened by SSM since 1) man/woman marriages are still recognized and 2) same-sex couples may be equally responsible for raising the children they create.
Also, an advocate of homosexual marriage could acknowledge the relevance of gender differences and the value of opposite gender parenting, yet still advocate on other grounds such as fulfilling the duty to bring children into the world in two parent households or on the basis of providing for a right to marry. In the alternative they could argue, as Biblarz and Savci did in 2010:
"Contrary to popular belief, studies have not shown that ‘compared to all other family forms, families headed by married, biological parents are best for children’ ... Research has not identified any gender-exclusive parenting abilities (with the partial exception of lactation)... ‘very little about the gender of the parent seems to be distinctly important.[lxviii]’”
One study came out in 2010 in Applied Development Science:
"Our findings revealed, for the first time, that young children adopted early in life by lesbian and gay parents were as well-adjusted as those adopted by heterosexual parents. Our results suggest that lesbian and gay adults can and do make capable adoptive parents. We found no significant differences among families headed by lesbian, gay, or heterosexual parents in terms of child adjustment, parenting behaviors, or couples’ adjustment.[lxix]"
Also, “That an opposite sex couple parents better than a single parent does not imply that an opposite gender couple parents better than a same-sex couple. In any case, most of the children of same-sex couples are adopted- which means that the choice is not as frequently between an opposite and a same sex couple as parents, but instead between having no parent and having two parents. At the least, for the vast majority of adopted children, the ideal of being raised by the child’s two biological parents is simply not feasible. Indeed, SSM may well encourage more adoption- and there is little doubt that a loving SSM home is better for a child on average than no adopted home[lxx].
Additionally, we must remember some of the salutary effects on children. According to the 2000 Census Bureau, between 166,000 and 300,000 children (and perhaps up to 2 million[lxxi]) live in a SS couple household. These numbers are likely larger now and are likely to persist. Thus, it may make good policy sense from a benefit-to-children perspective to encourage the marriage of the same-sex couple:
“[S]uppose that Ann makes use of artificial insemination to conceive a child, Bernard. Suppose further than Ann is raising Bernard with her partner, Nancy… Permitting [Nancy] to adopt can have a number of benefits for the child, e.g., he will be eligible to be covered under Nancy’s employer-provided insurance policy. However, in some jurisdictions, a non-marital partner is not allowed to adopt unless the parent is willing to surrender her own parental rights. Thus, in some jurisdictions, unless Nancy and Ann were married or Ann was willing to surrender her own parental rights, Nancy would not be permitted to establish a legal relationship with Bernard, and Bernard would be unable to avail himself of various financial benefits to which he would have been entitled had he been recognized as Nancy’s child…Nancy might be more willing to invest in her relationship with Bernard if that relationship were accorded legal protection.[lxxii]”
If Ann were to die in a car crash, Bernard might be sent to a home with people he doesn’t know if Nancy is a legal stranger to him- despite their relationship. (interestingly, even in those jurisdictions that allow second parent adoptions to compensate for the unavailability of marriage to same-sex couples, the second parent option reduces the incentive to marry and increases the number of children raised out of wedlock, partly because unmarried heterosexual couples have begun to avail themselves of second parent adoption[lxxiii]). Similarly, if Anna and Nancy break up, Anna could forbid Nancy from seeing Bernard, even if it would have been better for Bernard to maintain relationships with both of the adults who raised him since infancy.
This concludes our analysis of some points related to the contention that SSM may negatively affect children.
Children raised by same-sex parent couples may be better off, no different, or worse compared to those raised by opposite-sex parenting couples. Because the studies referenced by George et al don’t compare same-sex to opposite-sex couples, the conclusion that “children fare best on virtually every indicator of wellbeing when reared by their wedded biological parents[lxxiv]” may be misleading or a hasty generalization to the degree it infers that children fare better in wedded biological parent homes compared to same-sex couple homes (where one, both, or neither parent is also the biological parent(s) of the child).
Cass Sunstein’s The Paralyzing Principle[lxxv] described the precautionary principle: “the principle counsels that we should avoid steps that will create a risk of harm; until safety is established through clear evidence, we should be cautious. In a catchphrase: Better safe than sorry.” This concept is useful to the debate centering around SSM and child welfare. Many assert a principle such as this:
“Care should be taken before embracing broadly a redefinition of the institution of marriage until there is more and better evidence what the implications of that redefinition will be for children. Since SSM is recognized in a number of countries, and a number of states within the U.S., it will soon be possible for us to have a better understanding of what the effects, if any, are upon children. In the meantime, there is mixed evidence about what the effects of SSM will be for children.[lxxvi]”
Such appeals are not meritless. Analogizing to the environment, “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.[lxxvii]” However, the assertion of a precautionary principle also risks an appeal to ignorance if it admits that social science evidence is lacking, but lays the burden of proving net child welfare on the proponents of SSM: “the principle cannot be fully defended… simply because risks are on all sides of social situations. Any effort to be universally precautionary will be paralyzing, forbidding every imaginable step, including no step at all.[lxxviii]” Plus, even if net child welfare is decreased, net social welfare (resulting, for instance, from a strengthened marriage culture and increased welfare of homosexuals, including homosexual children and adolescents) resulting from legalizing SSM may still be positive, thereby justifying SSM on a utilitarian, social welfare basis.
The assertion that same-sex marriage should be prohibited because children should have a mom and a dad is a non sequitur to the extent that it applies to biological reproduction, as under current technological limitations every child has at least one biological father and at least one biological mother (and thus neither SSM nor its absence can affect this biological reality). Since same-sex couples generally don’t reproduce, there is little risk they will create children that will subsequently fail to have a biological mom and a dad (and even if they do create children without a biological father and mother, they could do so whether or not SSM is recognized). The argument may succeed if it is established that all children should have a male and female parent raising him or her. However, this conclusion may also prohibit single parenting or the marriages of divorcees, which also results in children being raised outside either a “father plus mother” or a “biological father plus biological mother” home. Also, unmarried opposite-sex couples often raise children- in which case it seems that marriage is not necessary for ensuring a two-gender parenting household (if two-gender parenting, rather than wedded two-gender parenting, is the ideal sought, as in adoption cases).
Last, the argument is a false cause since it has not been shown that the absence of SSM is more causal than same-sex marriage in bringing about the result of more child-mom/dad pairings. In many adoption cases, the child will not be raised by her parents irrespective of whether the adopting couple is married, unmarried, same-sex, or opposite-sex. In cases where a same-sex couple uses reproductive technologies such that one of the partners contributes to the child’s genes (e.g. a lesbian couple with a donated sperm), the child will admittedly not be raised by his biological father. However, this reality persists whether or not the lesbian couple is married.
I refuse to conclude, and will leave the paper as an analysis only. The reader may conclude, or not, at his or her wish.
[i] David D. Kirkpatrick, "The Conservative-Christian Big Thinker," December 16, 2009, available at http://www.nytimes.com/2009/12/20/magazine/20george-t.html?hpw=&pagewanted=all
[ii] Sherif Girgis, Robert P. George, & Ryan Anderson, What is Marriage, Harvard Journal of Law and Public Policy, Vol. 34, No. 1: 245-287, (Winter 2010).
[iii] E.g. Love and Fidelity Network, see http://www.loveandfidelity.org/blog/index.php/2010/12/08/hot-off-the-press-what-is-marriage/ and http://www.prolifeblogs.com/articles/aggregator.php?entry=988615
[iv] See http://www.amptoons.com/blog/2010/12/21/what-is-bodily-union-a-response-to-what-is-marriage/
[v] See e.g. The Argument Against Gay Marriage: And Why it Doesn’t Fail, by Robert P. George, Ryan T. Anderson and Sherif Girgis, December 17, 2010, A response to NYU Law Professor Kenji Yoshino. http://www.thepublicdiscourse.com/2010/12/2217
[vi] Supra note 2 at 246.
[vii] Id. at 248.
[viii] Id. at 249.
[ix] Id. at 252.
[x] Id. at 253.
[xi] Id. at 254.
[xii] Id. at 255.
[xiii] Id. at 259.
[xiv] Id. at 262.
[xv] Id. at 265.
[xvi] Id. at 268.
[xvii] Ampersand, “What Is Bodily Union? (A response to What Is Marriage?),” December 21, 2010, available at http://www.amptoons.com/blog/2010/12/21/what-is-bodily-union-a-response-to-what-is-marriage/
[xviii] Supra note 2 at 257 and throughout the first half of the article.
[xix] Id. at 254.
[xx] Alix Shulman, “Organs and Orgasms,” in Vivian gornick and Barbara K. Moran, eds., Women in Sexist Society: Studies in Power and Powerlessness, (New York: Basic Books, 1971), pp. 198, 205.
[xxi] Supra note 2 at 254.
[xxii] Id. at 255.
[xxiii] Id. at 255 in footnote 16.
[xxiv] Id. at 253.
[xxv] Lee HJ, Macbeth AH, Pagani JH, Young WS (June 2009). "Oxytocin: the great facilitator of life". Progress in Neurobiology 88 (2): 127–51. doi:10.1016/j.pneurobio.2009.04.001. PMC 2689929. PMID 19482229.
[xxvi] Sherif Girgis, Ryan T. Anderson and Robert P. George, “Marriage: No Avoiding the Central Question, A reply to NYU Law Professor Kenji Yoshino’s second critique of “What is Marriage?,” January 3, 2011, available at http://www.thepublicdiscourse.com/2011/01/2295
[xxvii] Carmichael MS, Humbert R, Dixen J, Palmisano G, Greenleaf W, Davidson JM (January 1987). "Plasma oxytocin increases in the human sexual response". The Journal of Clinical Endocrinology and Metabolism 64 (1): 27–31. doi:10.1210/jcem-64-1-27. PMID 3782434.
^ Carmichael MS, Warburton VL, Dixen J, Davidson JM (February 1994). "Relationships among cardiovascular, muscular, and oxytocin responses during human sexual activity". Archives of Sexual Behavior 23 (1): 59–79. doi:10.1007/BF01541618. PMID 8135652.
[xxviii] Supra note 2 at 255.
[xxix] Helen Fisher, Why We Love: the Nature and Chemistry of Romantic Love (humans have three separate motivational drives- sexual, companionate, and romantic).
[xxx] Supra note 2 at 253, 272.
[xxxii] Valerie Hudson, "The Men Have Muffed It: How Men's Misunderstanding of the Telos of Marriage Imperils Its Future," April 2009, “Additional Commentary on the Sherlock/Hertzberg/Hancock Debate,” SquareTwo, Vol. 1 No. 1 (Fall 2008), http://squaretwo.org/Sq2AddlCommentarySherlock.html
[xxxiii] Supra note 2 at 246.
[xxxiv] Id. at 258.
[xxxv] See e.g. Simon LeVay, Gay, Straight, and the Reason Why: the Science of Sexual Orientation, 2010.
[xxxvi] As far as I am aware, the evidence for this proposition is thin but present; see e.g. Buxton, A. P. (2004). “Works in progress: How mixed-orientation couples maintain their marriages after the wives come out,” Journal of Bisexuality, 4, 59–82.
[xxxvii] Supra note 2 at 258.
[xxxviii] Id. at 273.
[xl] PZ Myers, "My mouse has two daddies," posted on December 11, 2010, http://scienceblogs.com/pharyngula/2010/12/my_mouse_has_two_daddies.php Study: Deng JM, Satoh K, Chang H, Zhang Z, Stewart MD, Wang H, Cooney AJ, Behringer RR (2010) Generation of viable male and female mice from two fathers. Biology of Reproduction DOI:10.1095/biolreprod.110.088831.
[xli] See for comparison, Elizabeth Marquardt, “When 3 Really Is a Crowd,” July 16, 2007, available at http://www.nytimes.com/2007/07/16/opinion/16marquardt.html, and http://www.blakes.com/english/view_disc.asp?ID=245
[xlii] See Jeffery Barrow, current faculty in the Physiology and Developmental Biology Department at BYU, 355 WIDB, for elaboration.
[xliii] Supra note 2 at 257 and throughout the first half of the article.
[xliv] See e.g. Rafael Larco Hoyle and Dr. Francisco Guerra, quoted in Tannahill, Reay (1992) Sex in History, p. 297-298.
[xlv] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 112.
[xlvi] Kenji Yoshino, “Lose the Baseball Analogy: My response to Robert P. George's second attempt to justify banning gay marriage, Dec. 21, 2010, available at http://www.slate.com/id/2278794/
[xlvii] Perry v. Schwarzenegger, Northern District of California, Order, pages 111-114.
[xlviii] Robert P. George, Ryan T. Anderson and Sherif Girgis, “The Argument Against Gay Marriage: And Why it Doesn’t Fail,” December 17, 2010, A response to NYU Law Professor Kenji Yoshino, available at http://www.thepublicdiscourse.com/2010/12/2217
[liii] See e.g. Zill, N. (1995, May 10). Adopted Children in the United States. Testimony before the Human Resources Subcommittee of the House Ways and Means Committee, U.S. Congress; Mary Park, Are Married Parents Really Better for Children? What Research Says About the Effects of Family Structure on Child Well-Being. Center for Law and Social Policy, 2008.
[liv] William C. Duncan, “Compassionately Standing Up for Traditional Marriage… and Why We Should Be Concerned about Same-Sex Marriage,” in Understanding Same-Sex Attraction: LDS Edition, Editors Dahle, Dant, Byrd, Duncan, Cox, Livingstone, and Wells, Foundation for Attraction Research, 2009, pg. 376.
[lv] Brett Scharffs, feedback pg. 2.
[lvi] http://www.cnn.com/2010/HEALTH/06/07/lesbian.children.adjustment/index.html, http://onlinelibrary.wiley.com/doi/10.1111/j.1741-3737.2010.00714.x/full
[lvii] Supra note 2 at 257-258.
[lix] http://www.cpa.ca/cpasite/userfiles/Documents/Marriage%20of%20Same-Sex%20Couples%20Position%20Statement%20-%20October%202006%20%281%29.pdf .]
[lxi] Nanette Gartrell and Henny Bos , Pediatrics published online Jun 7, 2010; DOI: 10.1542/peds.2009-3153, “US National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents,” available at http://pediatrics.aappublications.org/cgi/reprint/peds.2009-3153v1
[lxii] Timothy J. Biblarz, Evren Savci. "Lesbian, Gay, Bisexual, and Transgender Families," article first published online: 18 June 2010, Journal of Marriage and Family, Volume 72, Issue 3, pages 480–497.
[lxiii] “Marriage of Same-Sex Couples” – 2006 Position Statement, Canadian Psychological Association, available at http://www.cpa.ca/cpasite/userfiles/Documents/Marriage%20of%20Same-Sex%20Couples%20Position%20Statement%20-%20October%202006%20%281%29.pdf
[lxiv] Wayne Schow, “ A Case for Same Sex Marriage: Reply to Randolph Muhlstein,” Dialogue: A Journal of Mormon Thought 40:3 (Fall 2007): pg. 62, footnote 4.
[lxv] Mark Strasser, “The Alleged Harms of Recognizing Same-sex Marriage,” in Wardle’s What’s the Harm, pg. 29.
[lxvi] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 79.
[lxvii] William C. Duncan, “Compassionately Standing Up for Traditional Marriage… and Why We Should Be Concerned about Same-Sex Marriage,” in Understanding Same-Sex Attraction: LDS Edition, Editors Dahle, Dant, Byrd, Duncan, Cox, Livingstone, and Wells, Foundation for Attraction Research, 2009, pg. 376.
[lxviii] Timothy J. Biblarz, Evren Savci. "Lesbian, Gay, Bisexual, and Transgender Families," article first published online: 18 June 2010, Journal of Marriage and Family, Volume 72, Issue 3, pages 480–497, http://onlinelibrary.wiley.com/doi/10.1111/j.1741-3737.2010.00714.x/full
[lxix] Rachel H. Farr, Stephen L. Forssell, Charlotte J. Patterson, "Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?" Applied Developmental Science, 14(3), 164–178, 2010.
[lxx] Mark Strasser, “The Alleged Harms of Recognizing Same-sex Marriage,” in Wardle’s What’s the Harm, pg. 33.
[lxxi] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 74.
[lxxii] Mark Strasser, “The Alleged Harms of Recognizing Same-sex Marriage,” in Wardle’s What’s the Harm, pg. 32.
[lxxiii] Dale Carpenter, “The Unconservative Consequences of Conservative Opposition to Gay Marriage,” in Wardle’s What’s the Harm, pg. 322.
[lxxiv] Supra note 2 at 257.
[lxxvi] Brett Scharffs, feedback pg. 2.
[lxxvii] Rio Declaration, 1992.
[lxxviii] Supra note 75.