The Volokh Conspiracy

[Maggie Gallagher (guest-blogging), October 20, 2005 at 12:09pm] Trackbacks
Brief Rebuttals:

Ok, very brief rebuttals, since you insist.

On adoption: I think adoption is great. I even think single parents adopting is great (if the alternative is no family).. I think arguably adoption is morally better than procreation. (The Christian view is we are all children of God through adoption).

But before you can adopt you have to have parents who have abandoned or are judged by the state to be incapable of caring for their own children. Adoption is thus a happy end to a tragedy or a crime. I personally think there should be preferences for married couples in adoption law. I could be persuaded you ought to have second-parent adoption laws for gay couples. But I don’t see how the fact that some married people adopt undercuts the relationship between marriage and procreation.

Anymore than I think the fact that people can and do bear children outside of marriage (and the state doesn’t forcibly repatriate their children) means that marriage really never really been about procreation.

People raise the most bizarre arguments: Well, if marriage were really important for procreation and family structure we’d do “X.” And the “x” is something no marriage culture has ever done to my knowledge: like forcibly annulling childless couples.

Andrew Sullivan is particularly good at this: He pulls out of his hat his standard for what would make marriage connected to procreation, like testing couples for infertility and barring those who are found not to be procreative, or having the state end marriages that are not child-producing within five years. And then he declares that the fact we don't do this "proves" marriage isn't really connected to procreation in law.

But the way marriage cultures work is quite different: by separating out a certain kind of sexual unions—husbands and wives-- and surrounding these unions with special legal, familial, religious and cultural support. Because the way it works in reality is, the more people attracted to the opposite sex who enter such unions, the better off children will be.

A subtler argument sometimes made is this: well, we have some nonprocreating couples in the mix. Why would adding SS couples change anything? Two points: SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples. This intrinsically means (if the effort is successful) downgrading if not eliminating the social significance of generativity (procreation and family structure). The second truth is that both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all.

A2 Reader:
People raise the most bizarre arguments: Well, if marriage were really important for procreation and family structure we’d do “X.” And the “x” is something no marriage culture has ever done to my knowledge: like forcibly annulling childless couples.

I don't see why this is a bizarre argument. The goal of the absurd hypothetical is to undermine the initial premise -- that the beginning and ending of marriage's utility relates to procreation -- by revealing its logical conclusion.

The fact that marriage don't work this way, that cultures don't work this way, is evidence against the premise. There's nothing absurd about it.
10.20.2005 12:23pm
Angus (mail) (www):
If adoptive familes are just as good as procreative ones, from the perspective of the child --- as Gallagher seems to imply here --- then it seems obvious to me that it would be better for a child to be raised from birth by a committed same-sex couple than in any of the family arrangements (single-parent, blended-family) that Gallagher has disparaged.

And since Gallagher contends so strongly that marriage strengthens families, she would presumably have to agree that the children of same-sex couples would be well served by policies that did not merely allow, but encouraged, their parents to marry.

That she is unwilling to concede either of these points demonstrates once again that she harbors an animus toward same-sex couples that she is unwilling to acknowledge.
10.20.2005 12:24pm
Progressive Joe (mail) (www):
People raise the most bizarre arguments: Well, if marriage were really important for procreation and family structure we’d do “X.” And the “x” is something no marriage culture has ever done to my knowledge: like forcibly annulling childless couples.

In fact, infertility has been an accepted justification for annulment and historically infertile women have faced significant social stigma. It may not have been de jure forcible annulment, but in practice such social stigma in effect barred infertile women from marriage. So, barring childless couples from marriage in fact has a historical analog in barring same-sex couples from marriage: they are both intended to ensure marriage was used for procreation. To the extent such barring of gay people and infertile people from marriage is based on moral disapproval or animus toward those groups, such hate-based rationales cannot be used to justify such restrictions today.
10.20.2005 12:25pm
Paul Sherman (mail):
So is procreation now only "connected" to marriage? Or is it still "the reason" for marriage? The former seems beyond question. The latter assumes that marriage has a single, overriding reason; a contention that seems open to debate.

Is Sullivan claiming that marriage isn't "connected" to procreation? Or is it, as it appears to me, that he's claiming it's obviously not the ONLY "reason" for marriage (as you stated in your first post)?

If he is arguing the former, he's a crackpot. If he's arguing the latter, you're doing him a considerable injustice by making a strawman out of a very reasonable argument.
10.20.2005 12:26pm
Crane (mail):
SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples. This intrinsically means (if the effort is successful) downgrading if not eliminating the social significance of generativity (procreation and family structure).

I was under the impression that gay couples wanted to get married precisely so they could add their partners to their own official "family structure". And, of course, many of them do raise children. So how does this downgrade the social significance of generativity?

Or is a marriage only generative if the couple can make babies together? Again, this would seem to relegate adopted children to second-class status.
10.20.2005 12:26pm
Angus (mail) (www):
For clarity, my "it would be better for a child to be raised from birth by a committed same-sex couple" above should probably be "it would be better, by Gallagher's professed standards, for a child to be raised from birth by a committed same-sex couple."

I myself have no opinion on whether, as Gallagher has claimed, blended families cause problems for kids.
10.20.2005 12:29pm
Maggie Gallagher (mail) (www):
Generativity is THE reason for marriage in the sense that it is the reason that is a. a legal status and b. a universal human institution.

It is not the only motive for marriage, nor the definition of marriage, nor the only personal benefit of marriage. (Childless couples really are marriage, and as I point out, their marriages also partly serve the procreative function of marriage, in that no member of this couples will be producing out of wedlock children.

Procreation and is also the most endangered social function of marriage, which is why I think any additional risk to this function at this time in history is morally unacceptable. Maggie
10.20.2005 12:32pm
Gene Vilensky (mail) (www):
Hi Maggie,

Good to see you here. Even though I disagree with much of your view on SSM, I think that you're onto something, especially with this post. One aspect of the idea that marriage is not entirely separate from procreation is the fact that we don't let siblings marry. In fact, the same arguments used by SSM proponents could easily be transferred to the realm of sibling marriages. After all, how can you be so bigoted as to deny the potentially sexual love that a brother and a sister share? The reason we don't do this is because we know that marriage is too inately tied to procreation. For example, we don't ban sex between siblings. But we do ban marriage between them because we do, in law, recognize that marriage as an institution is a baby-producing one and as such, we wouldn't want little Alexey Romanovs running around bleeding all over the place every time they fall in the playground, a high probability outcome of sibling marriage.

I have several disagreements, but will save them for a future comments. Again, good to see you here, and hope all is well.
10.20.2005 12:33pm
guest:

SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples.


This seems as close as we'll get to a candid admission that her opposition to SSM is actually all about keeping them homos subjegated.
10.20.2005 12:36pm
Justin Kee (mail):
"SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples. This intrinsically means (if the effort is successful) downgrading if not eliminating the social significance of generativity (procreation and family structure)."

From your writing, I interpret this to you mean the dilution of generativity by the addition of same-sex marriages to the mix.

"The second truth is that both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all."

But it dilutes the generativity, does it not?


I can not wait unti Friday, when I hope the semblance of rational thought returns to this web site.
10.20.2005 12:38pm
guest:
So as best I can tell, Maggie, your point is that a lack of procreation will doom our civilization, and that SSM will contribute to a lack of procreation.

Because the way it works in reality is, the more people attracted to the opposite sex who enter such unions, the better off children will be.

If that's the case, get off the point of what's best for children. That doesn't matter - you claim that you are in favor of adoption, and surely a stable home is what is best for children in cases of adoption. Since homosexuals can have kids, it would stand to reason that you would think a stable home for those children is also best. But you actually don't care about that, do you? Unless I misunderstand your argument, you just want to encourage more procreation. Is that correct?
10.20.2005 12:40pm
Goober (mail):
Maggie,

You've been pretending that the frustration felt by your commenters stems from your reluctance thus far to rebut their specific arguments.

It's not. It stems from your refusal thus far to articulate any reason why SSM would hurt marriage or otherwise discourage people from raising children in the context of traditional husband-and-wife households. And, emphatically, you have refused to articulate any such reason.

That is what your commenters want to know. Not whether you approve of adoption.

You've been promising it all week. Please, finally, tell us in what way allowing same-sex marriage will affect negatively different-sex marriage.

Cheers,

Goober
10.20.2005 12:46pm
Bob Van Burkleo (mail):
Generativity is THE reason for marriage in the sense that it is the reason that is a. a legal status and b. a universal human institution.

And since many same gender married couples are 'generative' just fine with the same technologies used by opposite gender ones that means they should also have access to this civil contract, right?

Again a flawed basic premise - 14% of opposite gender couples by choice or inability are 'non-generative'. The number of same gender couples who are non-generative is totally dwarfed by the the opposite gender ones that are. According to the Urban Institute demographics, 20% of gay and 33% of lesbian households are raising families with minor members. Of the gay families the same percentage have a 'stay at home' parent as do opposite gender-parented families. Children raised by loving parents are indistinquishable from each other regardless of the gender combination of their parents.

Marriage is no longer about controlling mere breeding and hasn't been for a very long time. That you reduce it to this indicates to me you are rather desperately looking for rationalizations for a preheld opinion not delving for the truth.
10.20.2005 12:53pm
tdsj:
"Their presence in the mix doesn’t signal anything in particular at all."

... or does it signal that marriage isn't always and only about procreation... and that marriage is already a varied and fluid institution with many forms...
10.20.2005 12:54pm
jrose:
Maggie: The second truth is that both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all. [...] Generativity is THE reason for marriage in the sense that it is the reason that is a. a legal status and b. a universal human institution.

My father (a widower) will be remarried next year at the age 74 to a post-menopausal woman. That marriage is not part of a life-cycle of marriage. Ditto for a couples which are known to be infertile before they marry.

Why does the state recognize these marriages? It cannot be to "partly serve the procreative function of marriage, in that no member of this [sic] couples will be producing out of wedlock children [if they aren't married]."
10.20.2005 12:54pm
Markusha:
Eugene,
No one has claimed that marriage is entirely separate from procreation. Of course, it is not. Although, as many commenters have demonstrated, it is by far not the only purpose nor has it ever been. Nurturing children is much more of a purpose than physical sexual act leading to pregnancy.
We don't allow siblings to marry for reasons having nothing to do with same sex marriage debate. We don't allow them to marry because it has been shown that children of these marriages are likely to suffer from diseases, as you yourself stated. Note that this rationale is simply inapplicable in SSM. There has been no scientific evidence that children raised in SSM are any worse off than children of heterosexual marriages. Moreover, the situation is also distinguishable because in the case of sibling marriages, there is nothing to prevent siblings from marrying someone else. In contrast, in the absence of SSM, gays cannot marry at all unless they change their sexual orientation.
10.20.2005 12:55pm
John H (mail) (www):
I can't stand that Sullivan argument, and I keep asking Maggie to respond to it this way:

All those married couples have the right, the license, to procreate together. Even the old ones, even the infertile, even the ones that don't intend to. Same-sex couples, like siblings, should not have a right to procerate together. This is incompatible with marriage, since every marriage has a right to have children together, even if the couple doesn't really need the license because they can have children outside of marriage now. Couples that don't have the right to procreate can't get married. These are the only couples that can't get married, and what is intended to be prohibited in denying them marriage is their procreation. We have not changed the procreation rights that come with marriage, even as the culture expanded the procreation rights of unmarried people. All marriages still grant the right to procreate like they have always done throughout history and in every culture, and as the court understood in the Loving and Zablocki cases.
10.20.2005 1:06pm
jpe (mail) (www):
It may not have been de jure forcible annulment, but in practice such social stigma in effect barred infertile women from marriage.

Presumably, the response to this would be in terms of presumption &administrative costs: we don't want to expend the energy it would take to have people take fertility tests, so we presume heterosexual couples are capable of having kids.

If there were obvious physical markers of infertility (a 3rd nipple or something), though, would we then prohibit those people from marrying? My intuition is that we shouldn't. Those people should still be able to marry, infertility or not. At least for me (and I suspect for most people), then, intuition doesn't track the proffered rationale for marriage.
10.20.2005 1:11pm
John H (mail) (www):
btw, when I say "Same-sex couples, like siblings, should not have a right to procerate together" I mean literally combine their gametes, using some technology that may or may not be developed. We don't have to wait for the technology to be developed to realize that even just trying it would be unethical, most obviously for safety reasons related to gene expression, but also for a whole host of other reasons, including all the reasons people oppose SSM, as well as reasons that have nothing to do with homosexuality or marriage (don't even bother to ask what the reasons are, they are too numerous to list. Just think of them as a huge storm cloud of ethical issues that can't be denied and won't go away by objecting to one particular issue I might offer as an example).

And currently, btw, same-sex reproduction is NOT illegal. I do not see how anyone can be opposed to a couple that intends to procreate together getting married first. As Maggie says, procreation is the reason for marriage, and if two women can procreate, they have a reason for marriage.
10.20.2005 1:13pm
Randy R. (mail):
Alright Maggie, it seems to me that you are arguing that we cannot separate biological child bearing from marriage, or else western civilization will collapse. If you truly believe that, then you should be arguing for a law which would say this:

"All persons entering into a marriage agree that they will produce children by natural childbirth within X years (X to be determined by the state). Failure to produce any children by the end date will result in an automatic declaration that the marriage is null and void."

This way your goals are fully accomplished -- it prohibits gay marriage, since gay people can't have children naturally, and it directly links marriage and procreation. Anyone impertinent to think otherwise will find themselves back at the singles bar in short order. It will get people's attention very quickly, will insure that people will associate marriage with procreation. It has the added benefit of not mentioning whether love or sharing a life has anything to do with marriage, as you seem to not care about that at all.

Wouldn't that be a better way to accomplish your goals? Then anyone opposing this legislation, you can label a bigot for resisting change!
10.20.2005 1:14pm
timbuktu (mail):
The following is from today's National Journal Hotline. I just found it an interesting aside to the current debate.

Sen. Sam Brownback (R-KS) "wants to promote marriage by" using "federal funds to match the savings of married or engaged couples to help them buy a home, get job training or start a business" in D.C. He's included a $3M provision in a pending '06 D.C. spending bill, half of which "would fun the marriage accounts," to give up to $9K to low-income couples, because he said "we must act quickly to stop the erosion of marriage in our nation's capital."
Legal Momentum Gov't Relations VP Lisalyn Jacobs said Washington "has always been the stepchild of carious congressional whims or preferences" and Brownback's proposal "could really be an incentive for someone whose relationship is questionable or problematic to make a bad choice." Rep. Jeff Flake (R-AZ) said the proposal was against the GOP's principles and said, "We continually talk about the ineffectiveness of federal programs, and then we turn around and propose similar ones" (Dodge, Bloomberg, 10/20).
Brownback will hold the 3rd Senate Judiciary Subcommittee hearing to discuss "a constitutional amendment that defines marriage as the union of one man and one woman" today at 2pm. "Experts will testify about the fate of traditional marriage in today's judicial environment and the role of a constitutional amendment in preserving marriage" (release, 10/19).
10.20.2005 1:18pm
John H (mail) (www):
jpe, it isn't just adminstrative costs of infertiilty tests. All of us have a right to attempt to procreate, that's why we all have a right to marry the person of our choice (with the exception of relationships where there is supportable basis to forbid their procreation, ie siblings and other (blood and non-blood) relatives.)

So, we don't give infertiity tests because everyone has a basic civil right to try.
10.20.2005 1:19pm
Marty (mail):

The fact that we don't revoke someone's drivers license if they don't own a car and never actually drive is PROOF that drivers licences have nothing to do with driving. If drivers licenses were about driving, you'd be required to own a car before you could get one.
10.20.2005 1:21pm
Law Student Kate (mail):
Oh my, this discussion is embarassing. It's one thing to disagree with Maggie (as I do). It's quite another that most of the posters apparently can't even discern her argument. She's made it pretty clear people. I guess that ideological brick wall she mentioned really does exist in most of your heads.

Here's the argument as I see it:

1. Marriage is a universal institution in successful societies. It has served many purposes (i.e. property distribution), but the main purpose has been to protect pregnant women and the children they have by binding the father to the family. For most of history, romantic love had nothing to do with it.

2. In the last 200 years, society has slowly moved away from the idea that marriage is about anything other than romantic love and personal fulfillment. With no-fault divorce and high out-of-wedlock childbearing, the idea that marriage is mostly about procreation has become tenuous.

3. If marriage is defined as being just about romantic love, fulfillment, and commitment to a partner, then marriage is doomed, because:
A. Romantic love is just about the most fickle and undependable emotion in human experience, and can't sustain an institution as important as marriage, and
B. Once you say marriage is just about a love commitment, there's no reason to limit it to unrelated, unmarried dyads in a sexual relationship. Any number of people who are or aren't having sex will be able to get married, and that removes any meaning from marriage.

4. Allowing SSM will be the straw that breaks the camel's back, and push our culture over the edge into believing that marriage is really just about a romantic love commitment, and not inherently tied up with the protection of pregnant women and children.

Now, I disagree with this analysis because:
1. I think that over the next 200 years, our society will move towards the unstable, individualized romantic view of marriage anyway, regardless of SSM. So I don't think allowing gay marriage will have anything more than a very slight accelerating effect on that change.

2. Denying a class of citizens the dignity of having equal rights isn't worth staving off a slight accelerating effect.

However, I can at least understand her argument, which is more than I can say for most people here. And her argument does make sense in a non-bigoted way, even though I ultimately think it's wrong. She's right that most Americans still think of marriage is being mostly about procreation (as a married, childless by choice woman, I can attest to this - I can't count the amount of times I've been asked "Why did you even bother to get married?" when I tell people that I don't intend to have children). However, the link is weakening, and this is especially true in the urban/liberal/educated areas that are also most in favor of SSM.

There are lots of reasons to disagree with Maggie. But it's shameful how many of the posters here are so blinded by ideology that they're literally incapable of understanding her argument. Aren't most of you lawyers, law students, or law professors? Isn't it your job to be able to comprehend and analyze both sides of an issue??

Also, several posters have challenged Maggie's views on gays in general, in an effort to reveal what they think is an underlying animosity. A valid concern, but I would ask the analogous question of SSM-supporters: Would you really care if marriage ceased to meaningfully exist in our culture?
10.20.2005 1:23pm
Anonymous Coward:
Marty,

The fact that we don't revoke someone's drivers license if they don't own a car and never actually drive is PROOF that drivers licences have nothing to do with driving. If drivers licenses were about driving, you'd be required to own a car before you could get one.


Everyone knows drivers licenses are for buying tobacco and liquor.

On a serious note, do you not have to pass a driving test to get a drivers license? Maybe we should have a 'pop out a baby' test before issuing marriage licenses?
10.20.2005 1:26pm
MarkW (mail):
Two points: SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples. This intrinsically means (if the effort is successful) downgrading if not eliminating the social significance of generativity (procreation and family structure)

How does recognizing the fundamental equality of gays and lesbians in any way "downgrade" the importance of "generativity." Non sequiturs do not become somehow valid simply because they are made by right-wingers.
10.20.2005 1:26pm
Angus (mail) (www):
I would ask the analogous question of SSM-supporters: Would you really care if marriage ceased to meaningfully exist in our culture?

I'm one of the folks who've tried to connect the dots on Gallagher's anti-gay animus, so I'll bite.

I'm not at all clear on what it would mean for marriage to "cease to meaningfully exist," but if that somehow happened? Yes, I'd care. I'd care very much.

I'm married. Heterosexually. Have been for ten years. I've got a kid. I believe in the institution of marriage, and I consider the commitment I made to my wife to be the most solemn, important commitment I've ever made to anyone.

I am the child of parents who have been together for forty years, as is my wife. I consider those stable marriages to have been formative in my character and in my wife's, and I look to them as examples as we raise our child.

So yes. Count me as a supporter of marriage.
10.20.2005 1:35pm
PaulD:
Basing marriage laws on pragmatic objectives or probabilistic outcomes is contrary to the principle of freedom and is just bad law. If you're going to go down the path of "likely to succeed in raising fertile offspring" it would be better to insist that a couple have a demonstrated income of $X per year than to insist that they be of the opposite sex. SSM should be forbidden because it is wrong, not because state planners don't foresee the requisite number of children being produced by it.
10.20.2005 1:42pm
Quarterican (mail):
Law Student Kate -

I think most people here do understand Ms. Gallagher's stated argument. After all, there's a nice thread started by Orin Kerr providing crib notes, and before the argument resumed there, we all seemed in agreement as to what the structure of her position was.

But it gets tiring to say the same things over and over in each thread. We're not really in dialogue with Ms. Gallagher, certainly not at this point (in my opinion). We're having a debate in these threads which references her posts as a jumping off point, and occasionally now she acknowledges some of the points which have been raised, though not in a way I find meaningful. (I mean, On Lawn at least has a paper he likes linking to on "The Sterility Strawman" - I disagree with it, but it's an argument. The closest Ms. Gallagher's come to addressing the same topic is to say that artificial insemination isn't passionate and beautiful the way heterosexual intercourse is.)

That said, I like the idea of marriage having a life-cycle. Bonus points to Ms. Gallagher for ratcheting up the mysticism. Especially for somehow saying that "childless couples" are "part of the life cycle" of marriage. What? Unless "every childless couple is a set of parents who haven't slipped one past the goalie yet," the Peter Pans of married life, they're not in the same life cycle as "marry, have kids, have grandkids."
10.20.2005 1:45pm
RBG (mail):
I think Law Student Kate's right, both in her evaluation of the quality of many of the comments and in her summary of Maggie's argument.

As to the first, I find it disturbing that apparently our law schools--I saw this among my own classmates as well--have failed at teaching the most basic elements of logic and rhetoric. It's certainly easier dealing with discomfiting arguments by asserting that your opponent is a bigot (how, by the way, is this any different from asserting, as some on the right do, that your opponent is immoral; certainly the commentors here would recognize THAT as an illegitimate form of argument--why not when the tables are turned). But it's still universally accepted, is it not, that the merits of an argument are to be decided on the strength of the argument itself, and not on the proponents motivations, underlying beliefs, or sources of funding? If not, I fear that this is evidence of an abandonment of reason that poses a far greater threat to enlightenment values than poor Maggie's alleged animosity toward gays.

As to the second, Maggie captures something important that has been obscured by reproductive technology--primarily birth control. Prior to reliable means of birth control, it was inevitable that male-female unions would produce babies; in this way, they were fundamentally different from same-sex relationships, and even had such relationships been recognized, they would have not have presented the same problem of how to contain and nurture the inherent generativeness (?) of the male-female union. Defining marriage broadly enough to capture most fertile couples was an attempt to solve the myriad problems this generative (and uncontrollable, apart from celibacy) characteristic of male-female relationships. Perhaps Kate is also correct that the popular concept of marriage has been transformed (arguably by the development of reliable birth control technologies). If she is, and the popular concept of marriage has finally diverged (or will diverge) so markedly from the traditional religious concept, perhaps it's time for either a privatization of marriage or a reassertion of the distinction between civil and religious marriage?
10.20.2005 1:47pm
Aultimer:

Law Student Kate:
If marriage is defined as being just about romantic love, fulfillment, and commitment to a partner, then marriage is doomed, because:
A. Romantic love is just about the most fickle and undependable emotion in human experience, and can't sustain an institution as important as marriage, and
B. Once you say marriage is just about a love commitment, there's no reason to limit it to unrelated, unmarried dyads in a sexual relationship. Any number of people who are or aren't having sex will be able to get married, and that removes any meaning from marriage.


Let's add this:
"C. The government has no business whatsoever regulating or bestowing advantage upon romantic relationships. Even less than in enforcing church-created contracts."

Does anyone think preventing SSM is a better way to accomplish Maggie's professed ends than restoring adultery law, repealing no-fault divorce for parents or a myriad other more targeted government acts? If there are better ways to serve the ends, why does she spend time on this?
10.20.2005 1:49pm
justanotherguy (mail):
It seems to me that MG is making a classic Burkean argument: that the wisdom of society shows this is best, and when not bad things happen. She then goes on to assume that the known and traditional structures are the best for assumed goals of society (procreation and child-rearing.)

Unfortunately(?), society underwent several revolutions in the 20th century, some technology driven (pill, antibiotics), some government driven (welfare state), and some socially driven (value changes in society). What we are left with is a system that does not allow differing methods of establishing society to compete within the self-government countries and no way to tell which are better than others.

MG mentions that marriage has been challenged in the inner cities, but doesn’t note that it has been replaced with the welfare state, and assumes that her prescription would lead to a better result. (what goals, what opportunity costs, what outside effects?)

It looks like there are too many other influences on the measurements MG is using as MOEs for why or why not SSM to accurately assess its benefit to her self-chosen goals. Of course as a libertarian, I would like government to get out of the way, including helping those that fail and allow society to develop new traditions that work.

Why not allow and see? We have enough other changes in society... why limit the choices... maybe this will lead to better traditions that meet or current tech driven society’s needs.
10.20.2005 1:54pm
corngrower:
I have not followed this close. It is not a legal issue. Want SSM fine with me. Get your personal state legislature to approve SSM. Or, I'm sorry, seems only sitting judges that can use commas have the brain power to sort out these complex social issues. Us commoners is tooo stooppid.
10.20.2005 1:55pm
Seamus (mail):

Anymore than I think the fact that people can and do bear children outside of marriage (and the state doesn’t forcibly repatriate their children) means that marriage really never really been about procreation.



"repatriate"? I do not think that word means what you think it means.
10.20.2005 1:58pm
Jesurgislac (mail) (www):
Maggie:

1. Do you think that having married parents benefits an adopted child?

2. If you think that, why do you think that children adopted by same-sex couples do not deserve those benefits?
10.20.2005 1:58pm
Ron:
PaulD,

SSM is wrong, how?
10.20.2005 2:00pm
JoeW:
For lack of anywhere else to post this; could Maggie Gallagher's guest blogging terminated. She's making the same arguments over and over and over and dozens of people are making the same counter-points just as redundantly. Unfortunately, the genuinely interesting posts for which I come to this site, are now lost in the seemingly endless paragraphs of Maggie blabbing. I'll give it another day before unlinking this blog permanently.
10.20.2005 2:03pm
Shawn (mail):
Gene Vilensky,

4 states permit first cousin marriage under the condition that they prove at least one member of the relationship is infertile. So in at least those four states, lack of procreation is a pre-condition to certain marriages.

I agree with Maggie that procreation is desireable within marriage. I also agree that it is important for children to be raised within a marriage as the legal benefits given to the parents create a more stable environment for them.

I disagree that SSM will harm procreation. I am disappointed, though not surprised, that Maggie avoids the issue of child raising (which is hard to tie only to opposite-sex couples) in favor of direct procreation (which is easily tied to only opposite-sex couples.) If she gives in and admits that marriage is good for the 18+ years a child is raised, versus the 9 months it takes to procreate and give birth, she greatly weakens her argument against including same-sex couples within marriage.

As a citizen, I am more concerned about how children are raised rather than how they come into being.
10.20.2005 2:15pm
Jesurgislac (mail) (www):
By the way, saying you think adoption is great is not a rebuttal to the point being persistently raised - why do you think adopted children don't deserve to have married parents when they are adopted by same-sex couples?
10.20.2005 2:19pm
eddie (mail):
Here's is a simple question regarding your rebuttal of Andrew Sullivan:

While I agree that he uses faulty logic, perhaps the point should be this, why are childless marriages supported with the same rights as child-bearing. IF the bundle of rights and privileges are really about supporting this result, then I would rephrase his criticism as one which says:

If you include all heteroxexual marriages under this blanket of procreative incentives and protections, why shouldn't there be a separate kind of marriage for barren, childless couples. Many couples never intend to have babies.

In any event, if the procreation and protection of children is the point, what does marriage (and the specific legal protections for the spouses) have to do with the kids? It would make more sense to create a body of law that actively protects the welfare of children.

And by the way, have you ever been to Norway, for example, where procreation and the protection of children are directly addressed without the need for the institution of marriage being propped up by the government.

Finally, as a contract, I don't recall any promises made to the other spouse regarding procreation or the support of children.

A final query, should the refusal to procreate be a ground for divorce?

Marriage as an institution to me is secondary to the family as an institution. What has been destroyed, with the help of our government, is the ability to have extended families, or tribes if you will. This is deomonstrably a more innate "cultural" institution than marriage per se.

Marriage and the bundle of rights and privileges appurenant thereto are mostly concerned with the disposition of property.
10.20.2005 2:19pm
drealy (mail):
I would dispute the notion that marriage is about procreation. Marriage is about sex. Sexual relationships are different than other relationships in a whole host of ways, and the possibility of procreation, while probably the most important, is by no means the only one. Cultures primarily deny marriage where sex is forbidden (like between siblings or other close relatives), and use marriage to ecourage and support stable and monogamous relationships.

People who believe that all homosexual sex is morally wrong also believe that same sex marriages should be forbidden because to recognize it is to legitimize homosexual sex.

I believe that marriage is a critical institution, and I also believe that society has strong interest in encouraging sexual relationships to be stable and monogamous, preferably with the institutional stability of marriage.

Our society has decided that homosexual sex can not be legally prohibited. Therefore I believe that allowing gay marriage, and encouraging gay couples to institutionalize stable monogamous relationships will strengthen the institution of marriage rather than weaken it. The threat to the role of marriage in protecting children is from sexual relationships outside of marriage, not from non-procreating sex within marriage.
10.20.2005 2:22pm
PaulD:
Ron,

I say SSM is wrong because a non-pleading interpretation of the Bible indicates that it is. Should religious views not have a place in this debate? Perhaps our society will decide that they do not, or it will turn out that the majority of even religious voices will turn out in favor of SSM. But it seems silly to me to think that the predominant reason heretofore that SSM was illegal was unrelated to the predominant Judeo-Christian moral framework of this country.
10.20.2005 2:24pm
Law Student Kate (mail):
Aultimer,

I think you are absolutely right that restoring fault-based divorce for parents and actively enforcing adultery and/or fornication laws would achieve Maggie's goals much more efficiently than prohibitng SSM would (the latter probably being practically useless for her goals).

Maybe she will answer why she isn't advocating for a restoration of the old laws. My guess is that she knows it's politically unfeasible.

As to whether the government should be regulating romantic relationships, the answer would clearly be no if it weren't for the fact that the children that are often the product of those relationships are vulnerable and need protection. Although certainly, we could deal with that problem by basing our laws directly around children and their rights to their parents, rather than trying to do it backwards through marriage laws.

See now, this is a useful discussion, when posters come up with better alternatives to deal with the problems Maggie is concerned with, rather than just telling her that she's a moron or evil.
10.20.2005 2:29pm
Molly:
Maggie,

You say: "People raise the most bizarre arguments: Well, if marriage were really important for procreation and family structure we’d do “X.” And the “x” is something no marriage culture has ever done to my knowledge: like forcibly annulling childless couples."

However, your factual assertion is wrong. According to strict jewish law a marriage is annulled if it does not produce any children within 10 years. Obviously very few Jews currently follow this practice, but the Ultra-Orthodox still do.

I'd say the reason most Jews no longer annul childless marriages, and the reason most people would be appalled if the US government did so, is that we recognize that whatever the purpose of marriage is, its about more than just procreation.
10.20.2005 2:31pm
Law Student Kate (mail):
eddie -

Refusal to procreate is currently a ground for anullment - the law considers procreation to be an "essential of marriage" such that without it, a spouse can actually void the marriage as if it never existed.

(P.S. "essential of marriage" is not my language, it's the common law language)
10.20.2005 2:35pm
PaulD:
For the government to allow divorce in the case of childlessness would be reasonable if divorce in general were outlawed, but what is the point when you can get a divorce for any reason?
10.20.2005 2:37pm
Bob Van Burkleo (mail):
Law Student Kate
A valid concern, but I would ask the analogous question of SSM-supporters: Would you really care if marriage ceased to meaningfully exist in our culture?
I think most here recognize that people generally benefit from being coupled up and the accompanying reasons why the state should encourage it. People are healthier as couples both physically and mentally, they are happier, they are more economically stable, they contribute more to the society and take less from it. And they are the best environment for the raising of children so that they will grow up to be healthier.
By giving these couples a way of merging their legal rights into effectively one entity, it allows a division of labor and responsibilities that are not easily possible when each individual is viewed only by themselves.
So yes, the very reasons why marriage should continue to exists are the same ones why all citizens should have access to the civil contract. Its good for the citizens (which in a government which exists to serve the citizens should be reason enough right there) its good for their families, and its good for the society in general.

As to your saying we are ignoring Gallager's thesis, we do because it is flawed - the current national debate isn't about 'marriage the insititution' but marriage the civil contract. Reality always trumps mental constructs and the reality is that same gender couples have been marrying, are marrying, and will continue to marry - the only question wh shouldn't their marriages have access to the civil contract of the same name?
10.20.2005 2:39pm
John H (mail) (www):
Jesurgislac: "why do you think that children adopted by same-sex couples do not deserve those benefits?"

Those benefits can be granted without granting procreation rights to those children's parents by creating civil unions which do not grant procreation rights. If we give them all the rights that a both-sex marriage has, either with marriage or a civil union that gives all the rights of marriage, then they would have the right to procreate that all marriages have. It would harm the adopted children if their parents attempted to procreate, not help them. They should be protected from their parents attempting to procreate by banning non-male/female procreation.
10.20.2005 2:41pm
Francis:
we have some nonprocreating couples in the mix. Why would adding SS couples change anything? Two points: SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples.

Aha! a point of agreement between this pro-SSM advocate and Ms. Gallagher.

If non-naturally generative couples may marry, then there is some marginal impact on the idea of generativity being the central concept behind marriage.

of course, there are a number of powerful arguments in rebuttal to this hypothesis.

a. no-fault divorce, the end of an agricultural-based economy (resulting in increased mobility of labor, resulting in people moving away from home more), the suffragette movement, the anti-anti-miscegenation movement, and the women's liberation movement have all had very powerful and irreversible effects on the definition of marriage, enhancing the contract theory to the detriment of the permit theory.

b. We're talking about 3-5% of the population. The impact to marriage arises from the current dispute. Once SSM becomes commonplace, the other pressures on "traditional" marriage will, arguably, far outweigh the pressure created by SSM.

c. It is possible that the hypothesis is backward. It is just as possible that the societal impact of having even the most disfavored community seeking access to marriage will enhance the concept of marriage.

d. Some prices are worth paying in order to give effect to our societal and Constitutional commitments to equal rights.

The second truth is that both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all.

hogwash. their presence signals that our society assigns values to marriage other than procreation. Their presence signals that the contract theory -- those who wish to marry should be allowed to marry -- has won out over the permit theory -- that the state licenses procreation.

Assuming away the evidence that contradicts one's hypothesis is always a weak move. Given the number and vitality of non-procreative marriages in this country, this assumption is fatal to this hypothesis.
10.20.2005 2:42pm
DM Andy (mail):
PaulD, I think that religious views do have a place in the debate. However the most common reponse to "The Bible says SSM is wrong" is "Yeah, so?". Maggie's been trying to outline why she thinks SSM will destroy marriage. I might be persuaded if she had provided decent statistical evidence of that from what's happened in other places but as far as I can work out, she hasn't.

By the way, TRC made a point last night that I did find interesting, if we have SSM, what's to stop non-gay couples from "marrying" to gain the financial advantages. If so that would change the nature of marriage in my eyes as marriage wouldn't be about love, but about finances. If there was evidence that was happening then I would be worried.

Kate, as a supporter of SSM, I would say I would care if marriage ceased to meaningfully exist in our culture. I happen to think that the introduction of SSM would make marriage more important in our culture as more people would be included in it.
10.20.2005 2:42pm
PaulD:
Law Student Kate,

Are you saying that from the perspective of the government one can indeed get a marriage annulled (as opposed to a divorce). Does that mean that community property laws, for instance, would not apply?
10.20.2005 2:43pm
jnet (mail):
Kate - well said. thanks.

Your summation makes me think of two apt metaphors. I do think that MG sees SSM as the proverbial back-breaking straw in this cultural and social moment in history, but to her credit I don't believe that she claims that it's the only clear and present danger to generativity. No-fault divorce is one 800 lb gorilla that comes to mind, but certainly not the only one. My sense of why people cringe or lash out when someone makes a straw-that-breaks-the-camel's-back argument is their belief that it is unfair or demonstrably untrue (2 different things) to claim that the next straw (here, SSM) will be the coup de grace that finishes off a good social institution. How can we know today that SSM will at some future time be that coup de grace? We can't, we're only hypothesizing. Also, with all these other material causes of the decline that preceded SSM, is seems arbitrary and unfair to make SSM the point at which society says "this is enough, nothing more." Kinda like being the last step you take before stepping off of a cliff into the abyss.

Another metaphor that comes to mind is the tide. I think your observation of some factors that have contributed to the decline of marriage and the threats to generativity is a realization that the decline/threat comes from the combined effect of many forces gathered over time. Reinforcing something to withstand to everyday effect of the tides is difficult, never-ending work. People don't stop building homes on coastal beaches after it is damaged or destroyed, but they rebuild a better beach home the next time. If we're concerned about building better the next time around, then we would address the biggest threats, and SSM is not one of the biggest.

I'm riffing on your post and am not trying to mischaracterize it. I realize that metaphors have limits, but sometimes they are helpful.
10.20.2005 2:44pm
PaulD:
DM Andy,

I suppose you're right -- "So?" probably is the extent of most people's interest in what the Bible has to say about marriage. On the other hand, I think the let's-keep-gays-from-marrying-without-saying-it's-wrong approach lacks integrity. I don't think a person who doesn't think homosexuality is wrong has any right to say what they should or shouldn't do. Of course, most people say I don't have that right either. I agree -- almost. I say I have no right but to withhold my approval -- which I think translates into a support for civil unions instead of SSM.
10.20.2005 2:51pm
Witgin:
One of the things that has struck me is the ease with which one of Gallagher's central arguments - that it is best for a child to be raised by her mother and father who are married to each other - is turned against MG by some commenters who argue, in effect, "if you agree with that, why would you deny the children of same sex relationships the benefit of married 'parents'".

Same sex "parents" are not the child's mother and father. Is that such a hard concept to understand? And the social science is pretty well established that the marriage status of a child's mother and father is highly correlated with the child's well being.
10.20.2005 2:54pm
Leeron:
Did Volokh give Maggie just enough rope to hang herself?

On adoption: I think adoption is great.

Peachy.

I even think single parents adopting is great (if the alternative is no family)

No arm-twisting needed here - Maggie concedes that adoption can even be "great" for single people.

I could be persuaded you ought to have second-parent adoption laws for gay couples.

As long as they're not gay? You would have to persuade Maggie to allow adoption within the context of a gay couple, even though it's "great" that singles can adopt, because...

Well, either she rejects the notion that two parents are better than one, at least where the two would be of the same gender, or she is motivated by anti-gay animus. The former position would seem irrational; the latter position would be what most people believe that Maggie Gallagher's arguments are all about.
10.20.2005 3:00pm
John H (mail) (www):
I'd like to know everyone's position on the question of allowing or not allowing same-sex couples to procreate together, using some process that combines their genes so that they are the two proginators of their children and no person of the other sex is involved in the conception.

I cannot fathom how people can avoid this question, or not see that it is the question of allowing marriage or not allowing marriage. Everytime there is a question of 'should this type of relationship be allowed to mary' the question was exclusively about the ethics of a relationship of that type procreating together. Why Maggie is content to let the question of marriage for this type of relationship be argued on a different basis than procreation rights is beyond me, since she ought to be in favor of anything that would further the connection of marriage and procreation.

I think Maggie must be in favor of procreation rights for same-sex couples, since she seems to be opposed to banning all procreation that is not the union of a man and a woman.
10.20.2005 3:00pm
Cornellian (mail):
Wow, Congressional Republicans must really think they're in trouble now. Usually they only start talking about the "threat" of same sex marriage when an election is less than 3 months away.

Brownback will hold the 3rd Senate Judiciary Subcommittee hearing to discuss "a constitutional amendment that defines marriage as the union of one man and one woman" today at 2pm. "Experts will testify about the fate of traditional marriage in today's judicial environment and the role of a constitutional amendment in preserving marriage" (release, 10/19).
10.20.2005 3:02pm
DM Andy (mail):
John H, I'm fine with it. Of course there are technical issues, would a YY embyro be viable?
10.20.2005 3:03pm
Kevin St. John (mail):
Eddie said:

Finally, as a contract, I don't recall any promises made to the other spouse regarding procreation or the support of children.


Marrying institutions may look at things differently, but I know that the Catholic Church asks engaged couples seeking to be married by the Church directly about their intent with regard to procreation. It is my understanding that a marriage that is entered into with the intent to procreate may be annuled when a spouse later refuses to procreate. It is as if the marriage was procured by material fraudulent misrepresentation.

As for the support of children, I think this obligation exists in our society regardless of marriage status (or contract), but those obligations may be removed by terminating parental rights.

In the context of marriage, to say that the support is not part of the contract--to the extent that marriage is a contract--just strikes me as bizarre. As a civil matter, marriage is not, of course, a written instrument (or oral agreement) with a list of terms and conditions. And even when it is through pre-nuptial agreements and the like, it is my understanding that courts find the portions of the agreements regarding the support of children to be either void (thus the marriage "contract" is like an agreement to, say, fix prices) or merely advisory for the court to take under consideration (in an action for divorce), but the language of the agreement is not, strictly speaking, enforceable. Put another way, the state erects many background rules or public policy interest that may not be contracted around. If a couple signs and files the marriage deed, observing all the requisite formalities, they become bound by many unalterable terms and conditions that the state created through statute and the common law. Because of this, I find the the whole concept of marriage as contract a messy analogy that does not fully capture the legal relationship between spouses and their children.
10.20.2005 3:04pm
Cornellian (mail):
Nothing at all, in the same way that a gay man is free to marry a lesbian "to gain the financial advantages", or a straight man is free to marry a straight woman "to gain the financial advantages" even where he has no romantic interest in her or desire to have children. Do such marriages of convenience change the nature of marriage? Since marriages like that happen now, what would you propose doing about them?

By the way, TRC made a point last night that I did find interesting, if we have SSM, what's to stop non-gay couples from "marrying" to gain the financial advantages. If so that would change the nature of marriage in my eyes as marriage wouldn't be about love, but about finances. If there was evidence that was happening then I would be worried.
10.20.2005 3:05pm
DM Andy (mail):
oops, pressed enter too early. But Same Sex Parenthood is going to happen somewhere sometime in the future and will happen even if Same Sex Marriage is outlawed. So I don't think it belongs in this debate which is about SSM.
10.20.2005 3:05pm
Bob Van Burkleo (mail):
DM Andy
By the way, TRC made a point last night that I did find interesting, if we have SSM, what's to stop non-gay couples from "marrying" to gain the financial advantages. If so that would change the nature of marriage in my eyes as marriage wouldn't be about love, but about finances. If there was evidence that was happening then I would be worried.

What about the opposite? Very common in the military for opposite sex lower ranked enlisted to ‘marry’ only so they can get off post housing and the increased benefits.

Sauce. goose. gander.

In reality though this is a mutually exclusive contract that in many states involves community property rights and distribution on dissolution. Most of the benefits of the civil marriage contract are of value to those who actually do want to build a life together, not casual roommates.
10.20.2005 3:06pm
Ampersand (mail) (www):
By the way, TRC made a point last night that I did find interesting, if we have SSM, what's to stop non-gay couples from "marrying" to gain the financial advantages.


What currently stops men and women who are "just friends" from "marrying" to gain the financial advantages?
10.20.2005 3:09pm
John H (mail) (www):
Their [older and childess couples] presence signals that the contract theory -- those who wish to marry should be allowed to marry -- has won out over the permit theory -- that the state licenses procreation.

How about siblings? We do not allow siblings to marry because their procreation would be unethical. It is unethical not only because it has a higher risk of birth defects, but also because declaring it ethical would mess up the proper dynamics of the family. Siblings should be considered off-limits as procreation partners, so that a proper, deeper sibling relationship can develop.
10.20.2005 3:10pm
Aultimer:

Witgen -

Same sex "parents" are not the child's mother and father. Is that such a hard concept to understand? And the social science is pretty well established that the marriage status of a child's mother and father is highly correlated with the child's well being.


Not hard to understand. Where's the established science that says adoptive M/F parents fair any less well in that analysis? Nowhere. Biology isn't relevant.

The problem is that there doesn't appear to be any science that says how kids with MM and FF parents fair compared to kids with MF parents.
10.20.2005 3:11pm
P J Evans (mail):
First: IANAL.
Second: Personally, I think marriage isn't going to disappear soon. I think it's a commitment, or if you will a covenant, between two people for mutual support, financial, social, or emotional, which may or may not include children, either naturally or by adoption. I don't think SSM is outside of that view.

I have worked with one person in a longterm same-sex relationship. From what I could see, it was marriage in every way but the legality. There was an adopted child - it took much longer than it should have done to get that through the system! - and I can say there was no difference in kind between a SSM and an OSM in that relationship.

If you want to say that SSM is wrong because marriage is about procreation, to me you must then show why it is not wrong to have childless OSM. If you want to say that SSM is somehow going to weaken marriage as an institution, then you must explain why same-sex couples want to marry. If you are telling me that SSM weakens marriage, or that marriage as an instituion needs to be defended from SSM, then you should be prepared to explain why then same-sex couples (or opposite-sex couples, for that matter) are eager to marry; you should also be prepared to explain why Brittney Spears's three-day opposite-sex marriage, with its attendant publicity, does not weaken marriage as an institution, where a twenty- or thirty-year same-sex relationship does.

Just saying.
10.20.2005 3:12pm
Shawn (mail):
DM Andy asks:

By the way, TRC made a point last night that I did find interesting, if we have SSM, what's to stop non-gay couples from "marrying" to gain the financial advantages. If so that would change the nature of marriage in my eyes as marriage wouldn't be about love, but about finances. If there was evidence that was happening then I would be worried.

With the many threads and hundreds of posts, it's no wonder you missed this when it was first brought up and shot down.

Essentially, this is already happening with opposite-gender marriages. People marry for many reasons, some of them not out of love. Mail-order brides? Arranged marriages? Same-sex marriage would only remove the male/female barrier to that problem.

On the flip side, community property laws would make this arrangement potentially expensive for both parties should they ever divorce. That and social stigma to those kinds of marriages keep them small in number, I'd bet.
10.20.2005 3:13pm
Jesurgislac (mail) (www):
Witgin: Same sex "parents" are not the child's mother and father. Is that such a hard concept to understand? And the social science is pretty well established that the marriage status of a child's mother and father is highly correlated with the child's well being.

So your view is that when a child is conceived by donor, there is no correlation between the child's well-being and the marital status of the child's legal parents? How have you established this? Is there a social study of children conceived by donor whose parents - the biological mother and her partner, male or female - were married, versus one where the mother and her partner were not married?

And you think that when a child is adopted, given that the child's adopted parents are not the child's "mother and father" biologically, it therefore can make no difference to the well-being of the child whether or not the adoptive parents are married? Again, what social studies are you basing your opinion on? Cite them.
10.20.2005 3:15pm
Maggie Gallagher (mail) (www):
"She then goes on to assume that the known and traditional structures are the best for assumed goals of society (procreation and child-rearing."

On this point, I don't really assume it. I provide considerable evidence for it, if you've followed the discussion.

But aside from the social science evidence on family structure one quesiton I have for you is this:

My eldest son's father abandoned me and his son. We were never maried. He never wanted to have children, he wanted to have sex and companionship.

What was wrong with what he did, if anything?

He didn't violate any vow or contract. He never asked to have a baby.

By what standards do we htink fathers are responsible for the children they make, if we don't think procreation and biology matter?
10.20.2005 3:17pm
dk35 (mail):
Law Student Kate,

I think your summaries of Gallagher's argument as well as the reasons for its failure are cogent, but I think you go overboard in your criticism of the commenters.

I agree that trying to surmise the ideology driving a person's argument is tricky. However, I think many (and I admit it, even me) who think there is homophobia underlying Gallagher's argument are providing their most educated guess to something that you yourself point out: namely, that though there are many, many other reasons for the breakdown of "traditional" notions of marriage, somehow same-sex marriage is the straw that breaks the camel's back.

What Gallagher has not offered is an explanation as to why same-sex marriage is the straw. I suppose this is simply a question we can ask. However, it is also true that Gallagher has barely mentioned no-fault divorce, has only mentioned the women's liberation movement within the context of villifying it, and has not mentioned at all what I think is, in my opinion, the real "straw that broke the camel's back" with regard to this subject: namely, the repeal of laws in the late 19th/early 20th century that had defined women, in property terms, as men's chattel.
10.20.2005 3:17pm
go vols (mail):
"If so that would change the nature of marriage in my eyes as marriage wouldn't be about love, but about finances. If there was evidence that was happening then I would be worried."

A historian might prove me wrong, but isn't the "romantic" version of marriage a relatively new concept? Particularly when comapred to how marriage relates to property and "finances"?

Another question--if you ask someone who's opposed to SSM about no-fault divorce, what will they say?

1) SSM poses dangers to the norm of traditional marriage and raising children that no-fault divorce does not.

By sheer numbers, this assetion seems dubious. I have certainly seen no evidence of it.

2) We would, ideally, get rid of no-fault divorce, but we can't, politically, so we'll focus on holding the line on SSM.

Fine-that's politically pragmatic. It raises the question, though: quite a few folks (a majority?) would never support the end of no-fault divorce laws. Many of these same folks, however, see a threat from SSM. Isn't that hypocrisy? If social conservatives REALLY care about the "procreative abyss," or whatever phrase Gallagher wants to use, where's the movement against no-fault divorce? How many conservative leaders have pushed for (or better yet, done) "covenant marriages"? Why worry about the small problem when the big one's staring you in the face?

The answer, as many SSM advocates suspect, may be animus towards gays. Otherwise, how can this be an intellectually honest position to take? I'm trying to make an honest argument, note, not just call everyone a bigot. I want a good answer.
10.20.2005 3:19pm
John H (mail) (www):
John H, I'm fine with it.

Do you demand a right to it? Are you against banning it? If you demand the right to procreate with a person of your same sex, you should list it a the top of the list of your demands, since it is a very significant demand, and not keep that demand hidden until later and hope no ne asks about it.

Of course there are technical issues, would a YY embyro be viable?

There are more than just "technical issues". We can't let people just create experimental embryos in the lab and see how they come out, these are people we are talking about. Yes, hetersexual couples create embryos and see how the baby comes out, but we all have the basic civil right to do that, when it is not banned for a supportable reason, such as prohibiting certain relatives, children, etc, from marrying.
10.20.2005 3:25pm
On Lawn (mail) (www):
-> A2 Reader: The fact that marriage don't work this way, that cultures don't work this way, is evidence against the premise.

The absurdity does not lie in its use of reductio ad absurdum, but in its absurd misconstruing of the arguement. Here Maggie is pointing out that if such a fallacy existed as Andrew and others say it does, it would have been exposed long ago. The non-existance of such measures in itself provides the discrediting of the argument.

The mechanics of how the argument is discredited lies not in the conclusions drawn, but in the premise made. The premise is what has been dubbed, Sterility Strawman. The impetus of marriage is its more for responsible procreation, where procreation is duely observed as crucial. The most excellent article so far on this issue that I've read, points to the anthrological purpose of marriage as The 800lb Gorilla. And to this date there has not been an argument raised to disprove it.

-> Angus: If adoptive familes are just as good as procreative ones, from the perspective of the child --- as Gallagher seems to imply here --- then it seems obvious to me that it would be better for a child to be raised from birth by a committed same-sex couple than in any of the family arrangements (single-parent, blended-family) that Gallagher has disparaged.

The reconsiliation of this dillema is rather straightforward, actually.

-> Progressive Joe:In fact, infertility has been an accepted justification for annulment and historically infertile women have faced significant social stigma.

Change in attitudes towards the disabled accounts for the reason this is no longer a common practice. However, homosexuality is not a handicap. To equate the two marks one of the inhumane phylosophies behind ss"m". Other threats from the adoption of inhumane phylosophies are also noted.

-> Paul Sherman: Or is it, as it appears to me, that he's claiming it's obviously not the ONLY "reason" for marriage (as you stated in your first post)?

Neither actually. His contention is more a cheap rhetorical trick called a strawman of the real argument. In short, he is unable to discredit the real argument, so he creates one he feels better able to tackle.

- > Crane: And, of course, many of them do raise children. So how does this downgrade the social significance of generativity?

What you argue here would cause one to wonder. Is the solution of ss"m" then really able to cover every situation where children are being rasied by a two (or more) person team? Consider that should I die, my wife would move in with her mother and that mutual trust and child raising relationship whould deserve every bit the same attention as any other couple comprising the same sex. Say, she moved in with my parents (which is just as likely in our plans at this point) so the children could still have a strong male figure in my father. There would be a trio arrangement, my wife and my parents. They should also have the same trust based arrangement recognized by the courts.

The problem with same-sex marriage is that it doesn't even try to address these issues, if its stated purpose is as you say. Indeed it is one area where the mask of charitable purpose slips and we see more a desire to pander a sexual habit.

Either way what you make is an argument for a parallel Reciprocal Beneficiaries program, since that would show but due deference to children's rights while attempting to assist with benefits the situations you and I describe.

-> Angus: it would be better, by Gallagher's professed standards, for a child to be raised from birth by a committed same-sex couple.

I cringe at your attempt to bolster an already discredited strawman, but that is beside the point. Quarterican asked me recently a question that I believe provides an answer to your assertion. Surely one can take anything related by someone and say existentially that is mearly their own values. But I believe they are rooted in much more fundamental values than you wish to admit.

-> guest: This seems as close as we'll get to a candid admission that her opposition to SSM is actually all about keeping them homos subjegated. [link]

[...]

If that's the case, get off the point of what's best for children. That doesn't matter... [link]

Yes it is a matter of priorities, is it not? I prefer ensuring the rights of children, you wish to pander sexual habits?

-> Justin Kee: From your writing, I interpret this to you mean the dilution of generativity by the addition of same-sex marriages to the mix.

I too have been dissapointed in the discourse on this site. But as far as your interpretation, I believe it could be clarified with the notes in this comment and this article, both posted yesterday.

-> Goober: It stems from your refusal thus far to articulate any reason why SSM would hurt marriage or otherwise discourage people from raising children in the context of traditional husband-and-wife households.

This is an example of the Argument by Personal Incredulity I mentioned as degrading the signal to noise ratio here.

-> Bob Van Burkleo: And since many same gender married couples are 'generative' just fine with the same technologies used by opposite gender ones that means they should also have access to this civil contract, right?

Wrong. Homosexuality is not a handicap.

-----

more later....
10.20.2005 3:27pm
Law Student Kate (mail):
Bob -


As to your saying we are ignoring Gallager's thesis, we do because it is flawed - the current national debate isn't about 'marriage the insititution' but marriage the civil contract. Reality always trumps mental constructs and the reality is that same gender couples have been marrying, are marrying, and will continue to marry - the only question wh shouldn't their marriages have access to the civil contract of the same name?


But I think your characterization is exactly what Maggie was talking about when she said that the two sides on this debate are talking past each other. Your characterization reflects the perspective of most SSM supporters. But for many SSM opponents, the issue IS about marriage as an institution, and whether it can withstand further change. So the two sides aren't even having the same debate. Opponents tend to see the institution as already being into extreme jeopardy, so they're wary about further changes. Supporters think that this is an exxagerated chicken-little view, don't see the harm, and thus are focused mainly on the equality/civil contract view.

I think that the reason that Maggie keeps repeating the same thing over and over is because she's trying to get agreement on what the debate is even about, and she's been losing. Your practical view is winning over her more abstract view. But if we can't agree on the issue, then how can we ever move on to the "meat" of whether SSM will positively or negatively effect the institution?
10.20.2005 3:31pm
Maggie Gallagher (mail) (www):
I've spent the last 20 years trying to reduce divorce and unmarried childbearing and strengthen marriage so that more children grow up with their own marriage mothers and fathers.

I could well be wrong--anyone could be wrong--but trying to figure out my "real" motives is kind of silly for anyone whose been familiar with my work.

Of course most people aren't for the good reason they have better things to do.

When I raise the argument about bigotry, its not personal. I'm not interested in a pass from Pro-SSM advocates on my motives. I'm interested in the consequences of this form of moral argument for the conjugal view of marriage
10.20.2005 3:34pm
Goober (mail):
Law Student Kate---

You make a nicely reasoned argument that explains a possible reason not to allows homosexuals to marry. Unfortunately, it's not an argument that Ms. Gallagher has made. She hasn't made any such argument, being perfectly content to let her readers assume she must be saying this or that. Rhetorically useful, but it's still a dodge.

I think probably most of us can imagine a potential argument. What I'm still interested in is what Ms. Gallagher's actual argument is. And I don't think it's beneath comment that after four days, Ms. Gallagher has been unable to give a single reason why gay marriage would hurt straight marriage.

I look forward to the debate, should it ever happen. But I can't fault those who think the reason Ms. Gallagher hasn't come forward with an answer, is that there is no answer.
10.20.2005 3:35pm
Elliot123 (mail):
Let's accept for the moment the notion that SSM will sever procreation from the definition of marriage.

What reason do we have to think this would sever procreation from marriages?
10.20.2005 3:36pm
DM Andy (mail):
John H, I'm not demanding a right to it, to be honest I don't think it's that important. But like cloning it seems to me to be an inevitable medical happening. It doesn't seem that it would be possible to ban anyway.
10.20.2005 3:38pm
On Lawn (mail) (www):
Ampersand: What currently stops men and women who are "just friends" from "marrying" to gain the financial advantages?

This is an interesting question. What is to stop young african american teenage pregnancy to gain the financial advantages of welfare for her and the child?

If I have it right you promote teenage pregnancy for african americans in poverty?

Where does this lead to you advocating abusing others to gain access to government money?
10.20.2005 3:39pm
Bill (mail):
Of all the factors that effect the well-being and opportunities of children, I doubt that having married parents tops the list in terms of influence.

Those who want to help children, therefore, would do better to address poverty, long working hours, parental illiteracy, the trend toward needing two incomes to support children, child health care, abuse and neglect, educational quality (or lack thereof), and arguable deterioration of civic/social support systems in some communities.

True, married couples (like any couple) will have more income. But the fact that two incomes are now viewed as a necessity detracts from parental availability.

Children with sub-literate parents are less likely to succeed in school. Marriage does not promote literacy.

Marriage arguably has a deletarious effect on forming successful support systems. Single parents often cooperate more successfully with other working single parents and extended families in sharing responsibility for childcare.

Etc.

It hardly seems to me that avoiding gay marriage is any kind of strategy for improving the well-being of children.
10.20.2005 3:40pm
Bill (mail):
Also, casual observation suggests that men and women often have a hard time living together. Fighting, poor communication, and divorce proceedings adversely effect children. Perhaps we should study whether same-sex cohabitors/child care providers do any better at making a happy home environment.
10.20.2005 3:44pm
Eisenstern (mail):
"The second truth is that both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all."

Oh, yes, when two 70-year-olds get married, it's just part of the "natural" circle of life. Hakuna Matata!

"I could well be wrong--anyone could be wrong"

Given the extremely weak nature of the arugments presented here, I, and I suspect many others, are inferring that the reasoning is results-driven.
10.20.2005 3:55pm
Bob Van Burkleo (mail):
Law Studen Kate
But for many SSM opponents, the issue IS about marriage as an institution, and whether it can withstand further change.
But it already IS changed! Churches all over the US and the world have been religiously marrying same gender couples for decades. Same gender couples have been marrying themselves even longer. I would speculate that the majority of gay people in the Seattle area are married, all they lack is access to the civil contract.

So yes, I do see her point of view as hysteria, and a manipulative one at that - by trying to take the discussion back to the unreal situation of 'should we allow this' it ignores the facts that:

1) 'we' don't get to decide if someone else is married - that's their decision, and
2) same gendered couples are already married in droves and have no identifiable behavioral difference from opposite gender ones.

To debate 'should we allow' is just sophomoric 'what if' mental masturbation. ("what if spartacus had had a piper cub?") These same gender married couples already exist, their families already exists and they will continue to exist in even greater numbers. The questions are:
1) is it ethical for and american government to deny some citizens reasonable access to the civil contract licensed in support of their fundamental right to marry?
2) will these citizens be better off allowing them access?
3) is society better off with them contracted or not?

I mean we can discuss Gallagher's thesis but when 14% of opposite gendered licensed couples already aren't 'generative' the percent or 2 that same gendered MIGHT add renders the point rather moot. For someone to obsess about the minority or 'principle' usually means there is an ulterior motive in my years of discussion.

Maybe if she could explain how citizens are better off not having access to this civil contract I could get more into her point of view.... ;)
10.20.2005 3:56pm
Ron:
Witgin: "And the social science is pretty well established that the marriage status of a child's mother and father is highly correlated with the child's well being."


No it's not. Not as it pertains to this discussion. The data indicate that children raised by (heterosexual) single mothers suffer in comparison with children raised by married couples (finances play an important role).

There is no data that I know of suggesting that children raised by two male parents or two female parents suffer in comparison with children raised by heterosexual married couples. If you can direct me to some, I would very much like to see it.
10.20.2005 3:56pm
Cornellian (mail):
The Bible says, among other things, that a woman who is not a virgin on her wedding night shall be put to death. Just how much Biblical literalism do you want? And to what extent are you will to impose compliance with the Bible on Christians who have a different interpretation of the Bible, on adherents of other religions and on non-religious people?

I say SSM is wrong because a non-pleading interpretation of the Bible indicates that it is. Should religious views not have a place in this debate? Perhaps our society will decide that they do not, or it will turn out that the majority of even religious voices will turn out in favor of SSM. But it seems silly to me to think that the predominant reason heretofore that SSM was illegal was unrelated to the predominant Judeo-Christian moral framework of this country.
10.20.2005 4:00pm
On Lawn (mail) (www):
-> Bill,

Besides casual thinking, and self admitted doubt, you wouldn't have any proof to substantiate those conjectures. In fact the proof tends to show that there is something of real substance to gender integration. We see children turning out better when raised in an intact family, we see the economic status of the parents and children raised, we see the health and longevity also improved.

More on the need for gender integration in parenting is here.
10.20.2005 4:00pm
On Lawn (mail) (www):
Eisenstern: Oh, yes, when two 70-year-olds get married, it's just part of the "natural" circle of life. Hakuna Matata!

Christian makes a powerful argument that the purpose of marriage is consistent with the elderly getting married. I'll also note that the disabilities that happen with age are very much different than social disability.
10.20.2005 4:03pm
DanielH (mail):
Your misuse of research is as glaring as Maggie's, On Lawn. None of those studies included same-sex parents, so we actually don't know how they stack up. In addition, "gender integration" doesn't work in homes involving step-parents, where the presence of an unrelated male actually INCREASES risk to the child where mom had remarried or is shacking up.

The only reason the term "biological" parents is used as a qualifier, is to separate them from "adoptive" parents. There is nothing in the research to show that the biological link is what is the deciding factor.
10.20.2005 4:05pm
On Lawn (mail) (www):
Bob: So yes, I do see her point of view as hysteria, and a manipulative one at that [...] 'we' don't get to decide if someone else is married - that's their decision, and

Such is the impotence of libre. Self-authorization has never been a very sane way to propogate welfare among societies. I submit your suggestion along those lines is something to re-evaluate.
10.20.2005 4:06pm
On Lawn (mail) (www):
None of those studies included same-sex parents

So what do you suggest is the difference between a same-sex couple and say, a grand-mother and mother teaming up to raise a child (which are included in the studies)?
10.20.2005 4:07pm
John H (mail) (www):
John H, I'm not demanding a right to it, to be honest I don't think it's that important.

Cool, so you would be happy if this right were not given to same-sex couples? If you say you wouldn't be happy if it was banned, and people only had a right to procreate with a person of the other sex, then you are demanding a right to it. And you aren't, so you'd accept a ban, even though it established a right that only both-sex couples had.

But like cloning it seems to me to be an inevitable medical happening. It doesn't seem that it would be possible to ban anyway.

No, it isn't inevitable (and it isn't medical, which is concerned with disease, and there is no disease or health issue involved) And it would be easy to ban, especially now, with this Congress and this President. All it needs to be is put in front of them so that they see how it could be used to preserve marriage, and the real meaning of marriage, at that.
10.20.2005 4:08pm
On Lawn (mail) (www):
One more thing...

The only reason the term "biological" parents is used as a qualifier, is to separate them from "adoptive" parents.

The reason biological is used as a qualifier is because it truely denotes an advantage to parenting. As the studies show, in-tact families do better in raising children than adoptive, and step-parent families.
10.20.2005 4:09pm
DanielH (mail):
Maggie,

Since you've admitted that you doomed your son to a non "gold standard" upbringing (based on your social science research) by not marrying his father, is it possible your ultimate marriage should have been banned by the government? We know what a risk you made by introducing a step-father (based on your social science research, of course), so should the state sanction "bad marriages" that create harms to children????

You'd ban same-sex marriages for committing the same, alleged offense.
10.20.2005 4:11pm