The Legacy of Baker v. Nelson
February 6, 2013
Justin Dyer
In a pair of high-profile cases scheduled for oral argument in March, the Supreme Court of the United States will weigh in on the current political and legal debate about same-sex marriage. As novel as it all seems, the issue of same-sex marriage first came before the high court over four decades ago in the little-known case of Baker v. Nelson (1972). The case began when two male students at the University of Minnesota sued the clerk of the Hennepin County district court for refusing to grant them a marriage license. After a run through the Minnesota court system, the United States Supreme Court dismissed the case for “want of a substantial federal question.”
As the Minnesota Supreme Court acknowledged, the state’s marriage statute didn’t say anything specifically about same-sex unions. Yet the law in question was littered with language (e.g., “husband and wife” and “bride and groom”) that presumed marriage was a union of a man and woman. The same understanding was codified in the dictionaries of the day. In the 1960s, Webster’s Dictionary defined marriage as “the state of being united to a person of the opposite sex as husband and wife.” A 1951 edition of Black’s Law Dictionary went further, defining marriage as “the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”
According to a general cultural understanding in place until quite recently, sexual complementarity was the foundation of civil marriage. For many people today—and especially those of the Millennial generation—this understanding seems quaint, if not bigoted. Why should we care about the sex of the persons wanting to marry? Is marriage not about love and commitment? And can two men or two women not love one another and commit to each other as much as anyone else? The rhetorical force of these questions is strong, and stronger still because we have lost sight of why our culture at one time defined marriage, with little serious controversy, as a union between a man and woman.
Until recent years the Anglo-American common law and the decisions of American courts uniformly defined marriage (as the Minnesota Supreme Court wrote) as “a union of man and woman, uniquely involving procreation and rearing of children within a family.” The structure of our marriage laws developed in light of the reality that sexual relationships between men and women (generally) create children and children (generally) are better off when raised by their biological mom and dad. As Maggie Gallagher is fond of saying, “Sex between men and women makes babies, society needs babies, and babies need a father as well as a mother.” Providing children with stable families and connecting them to their moms and dads is the societal challenge for which marriage is our institutional response.
Against this backdrop, the revisionist view of marriage put forward by the plaintiffs in Baker v. Nelson, as well as activists today, has two principal claims: 1) marriage was never really about procreation and 2) requiring sexual complementarity in marriage is as irrational and bigoted as forbidding interracial marriage. On the latter point, the lawyer representing the plaintiffs in Baker noted that “the state does not put upon heterosexual married couples a condition to prove capacity or declared willingness to procreate.” Since procreation was not essential to marriage, he further claimed, statutes defining marriage as a conjugal union between a man and a woman were of a piece with the anti-miscegenation statute struck down a few years earlier in Loving v. Virginia (1965).
The Minnesota Supreme Court offered two brief points in response. On procreation, the court insisted that the “statute is no more than theoretically imperfect” and that there is no requirement for “perfect symmetry.” On the analogy to racism, the court wrote simply that “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Five years after its decision in Loving v. Virginia, the Supreme Court then dismissed Baker for lacking a federal question—something it could do only if Minnesota’s marriage law did not violate the federal Constitution.
When the court revisits the issue in March, defenders of conjugal marriage will face both a more skeptical court and a more skeptical public.
As more advocates of same-sex marriage are willing to admit, the rejection of the traditional definition of marriage will have consequences that travel far beyond the issue of same-sex marriage. Severing the conceptual tie between marriage and procreation will undercut and render unintelligible many of the (already weakened) norms that have traditionally surrounded marriage, such as permanence and sexual exclusivity.
The rhetoric of equality, when taken to its logical conclusion, will render civil marriage itself suspect, since even same-sex marriage (as the philosopher Elizabeth Brake complains in the preface to her book Minimizing Marriage) “marginalizes the unpartnered and those in nontraditional relationships—quirkyalones, urban tribes, care networks, polyamorists.” The principles behind the “marriage equality” movement require much more than same-sex marriage. After defining marriage as an intense emotional bond between any two adults, the next questions will be, why marriage at all? Why two adults? Why do we care? Indeed, many are already asking these questions.
Of course, our marriage culture started to fracture long before the current debates, and a recent article in the Economist nicely summarizes the consequences. With the decline in marriage “come rising out-of-wedlock-birthrates” and “with illegitimate births come single-parent homes.” The effects of single-parent homes (which in most instances mean fatherless homes) are well-documented and well-known: “Children brought up in such homes fare worse than children raised by married parents in a range of academic and emotional outcomes, from adolescent delinquency to dropping out of school.”
Regardless of how the dust settles at the end of the Supreme Court’s term, the steady erosion of the American family will remain a significant and pressing concern in the coming years. But the ability of marriage, as a public institution, to address the issue will be further weakened if the court finally imbibes the arguments it dismissed in 1972.
Justin Dyer teaches political science at the University of Missouri and is the author, most recently, of Slavery, Abortion, and the Politics of Constitutional Meaning. Follow him on Twitter @JustinBDyer.
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Comments:
2.6.2013 | 7:49am
Alan says:
This is an interesting piece of constitutional history that reveals how quickly opinion can shift even on fundamental matters. Of course, if one reads the excerpts from the court's opinion, it is easy to see why: the opinions about marriage were simply asserted, not argued. Three brief comments: First, the severing of the connection between marriage and procreation is hardly the invention of the same-sex-marriage movement. Rather, the increasing number of children born out of wedlock testifies to something more fundamental. Second, the key, as Maggie Gallagher's comment indicates, is not procreation but the raising of children, and for that stable long-term parental relationships are essential. Divorce is the real enemy of marriage and family, though most Christian denominations have (inexplicably) made their peace with widespread divorce. Third, most of those who favor same-sex marriage do not assert that procreation is irrelevant to marriage, and most do not deny the advantages of a two-parent home for children (though the parents may have the same gender). Rather, they argue that not all marriages must lead to children or have procreation and child-rearing as their goal.
2.6.2013 | 10:11am
Guest says:
“marginalizes the unpartnered and those in nontraditional relationships—quirkyalones, urban tribes, care networks, polyamorists.”
This is the potential black swan that alot of people aren't thinking about right now.
Let's remember that marriage is a response to something, otherwise the gov. would never have gotten involved. There is no reason to regulate or sanction relationships between people of the same sex because they never result in children. Whereas there's never been a person without a mom and dad.
This could drive the gay community apart and split it along class and income lines. Richer folks will marry to lock-in their partnership while poorer people will pass on the institution as it will continue to look superfluous to their needs. But we already know this from the experiences in Holland and Canada and other places. Gays do not marry generally and divorce at much higher rates. And that's to be expected, there is really no reason to formalize their relationships to the same degree.
Marriage is already becoming a thing for people in the higher income brackets and this is very bad for everyone. If the courts force the redefinition of marriage it will accelerate the trend. Richer, more up-scale gays will tend to marry more than their poorer counterparts and this will further strenghten our culture's perception that marriage is in and of itself something only for elites. And this will have very bad consequences for chilren.
Oh and saying that every child should have a mummy and daddy will be like saying blacks are inferior humans. Ask people from countries that have re-defined marriage and they'll tell you that saying something like that has become taboo. People squirm in their chairs and accusations of intolerance begin to fly.
This is the potential black swan that alot of people aren't thinking about right now.
Let's remember that marriage is a response to something, otherwise the gov. would never have gotten involved. There is no reason to regulate or sanction relationships between people of the same sex because they never result in children. Whereas there's never been a person without a mom and dad.
This could drive the gay community apart and split it along class and income lines. Richer folks will marry to lock-in their partnership while poorer people will pass on the institution as it will continue to look superfluous to their needs. But we already know this from the experiences in Holland and Canada and other places. Gays do not marry generally and divorce at much higher rates. And that's to be expected, there is really no reason to formalize their relationships to the same degree.
Marriage is already becoming a thing for people in the higher income brackets and this is very bad for everyone. If the courts force the redefinition of marriage it will accelerate the trend. Richer, more up-scale gays will tend to marry more than their poorer counterparts and this will further strenghten our culture's perception that marriage is in and of itself something only for elites. And this will have very bad consequences for chilren.
Oh and saying that every child should have a mummy and daddy will be like saying blacks are inferior humans. Ask people from countries that have re-defined marriage and they'll tell you that saying something like that has become taboo. People squirm in their chairs and accusations of intolerance begin to fly.
2.6.2013 | 11:01am
jason taylor says:
What are these mysterious denominations that have inexplicably "made their peace" with divorce? The one I was brought up in hasn't and Catholics haven't. If you mean there are Church members who are divorcees why so there are. There are also Church members who are former drug users.
2.6.2013 | 1:35pm
Mike Melendez says:
Alan writes: "...the opinions about marriage were simply asserted, not argued."
As first, I thought you were referring to the plaintiffs. Then I read the rest of your piece. Given your first conclusion, the only rational course would be to argue against federal recognition of marriage as having no meaning. But you seem to go the "I'm right and you're wrong" route. I guess you're for assertions all around.
If thousands of years of marriage practice have no meaning, then the newly devised "arguments" for SSM will have to wait a while.
As first, I thought you were referring to the plaintiffs. Then I read the rest of your piece. Given your first conclusion, the only rational course would be to argue against federal recognition of marriage as having no meaning. But you seem to go the "I'm right and you're wrong" route. I guess you're for assertions all around.
If thousands of years of marriage practice have no meaning, then the newly devised "arguments" for SSM will have to wait a while.
2.6.2013 | 1:42pm
Boo says:
Gay people find their sexual complementarity in their own sex. If we didn't, gay couples would not exist.
"The structure of our marriage laws developed in light of the reality that sexual relationships between men and women (generally) create children and children (generally) are better off when raised by their biological mom and dad."
Except that once we actually started scientifically comparing children raised by straight couples to children raised by gay couples, we found that this is not, strictly speaking, the reality. Even after Regnerus rigged the game in his "study" he found that kids raised from birth by lesbian couples turned out just as well as kids raised by intact biological families. (He didn't look at kids raised from birth by gay male couples)
"The structure of our marriage laws developed in light of the reality that sexual relationships between men and women (generally) create children and children (generally) are better off when raised by their biological mom and dad."
Except that once we actually started scientifically comparing children raised by straight couples to children raised by gay couples, we found that this is not, strictly speaking, the reality. Even after Regnerus rigged the game in his "study" he found that kids raised from birth by lesbian couples turned out just as well as kids raised by intact biological families. (He didn't look at kids raised from birth by gay male couples)
2.6.2013 | 1:55pm
Ken Zaretzke says:
Great article. Speaking of the new cultural skepticism, it seems that people aren’t really paying attention to intellectual common sense. For example, proponents of SSM always say “what’s the harm of letting homosexual couples marry?” as if this decides the issue. There is a real sense in which, if same-sex marriage is incoherent or inadequate as a conception of marriage, the question “what’s the harm?” hurts rather than helps the cause of SSM.
Same-sex marriage is based on commitment as the reason for marriage, as opposed to procreation. Commitment, however, is the theoretical goal of cohabitational arrangements. In cohabitation, the partners often begin with minimal commitment (not *no* commitment, whatever they guy may say, because being sexual partners who live together inherently is a commitment).
While they might begin with minimal commitment, it is expected or hoped that continued cohabitation will lead to greater commitment, and eventually to the maximum commitment that is equated with marriage. But then how is marriage different from cohabitation? Commitment won’t show how. It can’t explain why society privileges marriage over cohabitation.
Marriage understood as commitment is incoherent insofar as there is a clear difference between marriage and cohabitation, in which the latter is strictly junior varsity. The idea of SSM as a per se harm to marriage is entirely justifiable.
Logically, the conclusion of SSM advocates should be that marriage must be abolished. Only patriarchy--supposedly the ultimate social evil--can explain why marriage has long been privileged over cohabitation. So unjust an institution as patriarchy-promoting marriage should be dispatched forthwith--preferably in the private as well as the public realm. This isn’t just about *civil* marriage.
It may never come to that. But it might. There is a logical progression to it, rooted in powerful liberal delusions about justice.
Same-sex marriage is based on commitment as the reason for marriage, as opposed to procreation. Commitment, however, is the theoretical goal of cohabitational arrangements. In cohabitation, the partners often begin with minimal commitment (not *no* commitment, whatever they guy may say, because being sexual partners who live together inherently is a commitment).
While they might begin with minimal commitment, it is expected or hoped that continued cohabitation will lead to greater commitment, and eventually to the maximum commitment that is equated with marriage. But then how is marriage different from cohabitation? Commitment won’t show how. It can’t explain why society privileges marriage over cohabitation.
Marriage understood as commitment is incoherent insofar as there is a clear difference between marriage and cohabitation, in which the latter is strictly junior varsity. The idea of SSM as a per se harm to marriage is entirely justifiable.
Logically, the conclusion of SSM advocates should be that marriage must be abolished. Only patriarchy--supposedly the ultimate social evil--can explain why marriage has long been privileged over cohabitation. So unjust an institution as patriarchy-promoting marriage should be dispatched forthwith--preferably in the private as well as the public realm. This isn’t just about *civil* marriage.
It may never come to that. But it might. There is a logical progression to it, rooted in powerful liberal delusions about justice.
2.6.2013 | 2:39pm
Scott Wolfe says:
It seems we too often focus on the procreation of children as the sole reason for marriage, when that argument can easily be refuted by the fact that no marriage law requires that anyone prove capacity or willingness to procreate.
Have we forgotten the Genesis story of why a man leaves his father and mother and cleaves to his wife -- it is not good for man to be alone, and woman was taken from man. In other words, a man is better when cleaving to a woman. A man and woman form a complete -- image-of-god-like -- human unit.
The raising of children is a byproduct of that completeness. But there are many other by-products. Greater productivity; greater capacity for strength, generosity, love, etc.
Are we ashamed to admit that our worldview of the complimentarity of man and woman justifies the state's support of one-man/one-woman marriage?
Have we forgotten the Genesis story of why a man leaves his father and mother and cleaves to his wife -- it is not good for man to be alone, and woman was taken from man. In other words, a man is better when cleaving to a woman. A man and woman form a complete -- image-of-god-like -- human unit.
The raising of children is a byproduct of that completeness. But there are many other by-products. Greater productivity; greater capacity for strength, generosity, love, etc.
Are we ashamed to admit that our worldview of the complimentarity of man and woman justifies the state's support of one-man/one-woman marriage?
2.6.2013 | 3:04pm
Devinicus says:
jason taylor, consider The Episcopal Church who made Barry Beisner, a twice-divorced man married to his third wife, a bishop.
2.6.2013 | 3:33pm
John Burford says:
@ Boo
That's not what is meant by sexual complementarity. It's not emotional complementarity that happens to involve sexual attraction. It's biological/teleological. 2 men or 2 women simply don't fit together the way 1 man and 1 woman do.
The basic traditional marriage argument is this:
1. Marriage is a comprehensive union of persons.
2. Persons are creatures of both body and mind.
3. Therefore, any comprehensive union must involve both union of the mind (consent) and union of the body (heterosexual sex).
If marriage is re-defined as a consent-based contract, marriage loses all coherence because nothing about the nature of consent limits it to 2 people. 3, 4, or 18 people are perfectly able to consent to a contract.
Regarding Regnerus, you should do your research. His basic finding was that gay relationships tend to be much more unstable (didn't last as long, less exclusive during the relationship, etc.), and this instability was what caused all of those bad outcomes for children. As he explains in his follow-up reply to his critics, he didn't control for stability because instability appears to be a consistent feature of gay relationships (both in the US and in the Scandinavian countries where similar research has been conducted) and to control for it would skew the results.
It would be like saying that divorce isn't bad for children as long as the parents continue to live together with the children. Since divorced couples generally DON'T live together after they're divorced, residential status shouldn't be controlled for. Same thing with instability and gay couples.
You might find the following blog by a gay celibate Catholic convert interesting: http://beatushomo.blogspot.com/
Best,
John
That's not what is meant by sexual complementarity. It's not emotional complementarity that happens to involve sexual attraction. It's biological/teleological. 2 men or 2 women simply don't fit together the way 1 man and 1 woman do.
The basic traditional marriage argument is this:
1. Marriage is a comprehensive union of persons.
2. Persons are creatures of both body and mind.
3. Therefore, any comprehensive union must involve both union of the mind (consent) and union of the body (heterosexual sex).
If marriage is re-defined as a consent-based contract, marriage loses all coherence because nothing about the nature of consent limits it to 2 people. 3, 4, or 18 people are perfectly able to consent to a contract.
Regarding Regnerus, you should do your research. His basic finding was that gay relationships tend to be much more unstable (didn't last as long, less exclusive during the relationship, etc.), and this instability was what caused all of those bad outcomes for children. As he explains in his follow-up reply to his critics, he didn't control for stability because instability appears to be a consistent feature of gay relationships (both in the US and in the Scandinavian countries where similar research has been conducted) and to control for it would skew the results.
It would be like saying that divorce isn't bad for children as long as the parents continue to live together with the children. Since divorced couples generally DON'T live together after they're divorced, residential status shouldn't be controlled for. Same thing with instability and gay couples.
You might find the following blog by a gay celibate Catholic convert interesting: http://beatushomo.blogspot.com/
Best,
John
2.6.2013 | 3:34pm
Guest says:
Laws do indeed presume capacity for procreation. Many laws simply assume that the marriage will be consumated. And if it wasn't it used to mean it was invalid. And as we all know 2 men can not consumate their pairing because it is by definition impossible. The same goes for 2 women; they can never really join and become one, can they? They can of course feel like one body but unless they use their hands or mouth or whatever they can not join together to become unified. Only one man and one women can become one.
But, none of this really matters anyway: Marriage was destroyed long ago by us so although this will hurt kids more and poor people more, it will not really matter that much as most men and women are already not interested in marriage.
As for the new cultural paradigm...well you heard Obama. The sexual revolution begun 50 years ago is almost complete. But, again, not that surprising. Afterall, the sins of the flesh have been around since even before Adam and Eve, or is it now discriminatory to say that. Ok, since Adam and Eve or Adam and John or Sally and Kelly. There.
But, none of this really matters anyway: Marriage was destroyed long ago by us so although this will hurt kids more and poor people more, it will not really matter that much as most men and women are already not interested in marriage.
As for the new cultural paradigm...well you heard Obama. The sexual revolution begun 50 years ago is almost complete. But, again, not that surprising. Afterall, the sins of the flesh have been around since even before Adam and Eve, or is it now discriminatory to say that. Ok, since Adam and Eve or Adam and John or Sally and Kelly. There.
2.6.2013 | 4:36pm
Don Roberto says:
First time I've seen mention of those poor "quirkyalones." This whole campaign is designed to destroy the institution of marriage by defining it into a meaningless nothing. (Much like atheists now define the creator of the universe—Stephen Hawking and his fellow pseudo-atheists literally think it created itself from nothing.)
The best thing the government could do for marriage would be to enforce antipornography laws. This would increase "fidelity of the eyes," both for those who are married and those who desire it. Infidelity (physical or mental) erodes our innate ability to bond with a spouse in permanent Holy Matrimony. By defining deviancy down and allowing immoral profiteers to violate the minds of the innocent, and to destroy the loyalty of spouses, we have made it inevitable that divorce and all manner of deviant behaviors would become commonplace.
The best thing the government could do for marriage would be to enforce antipornography laws. This would increase "fidelity of the eyes," both for those who are married and those who desire it. Infidelity (physical or mental) erodes our innate ability to bond with a spouse in permanent Holy Matrimony. By defining deviancy down and allowing immoral profiteers to violate the minds of the innocent, and to destroy the loyalty of spouses, we have made it inevitable that divorce and all manner of deviant behaviors would become commonplace.
2.6.2013 | 5:00pm
LeslieDF says:
At the least, marriage is recognition of family - its participants and their relationships. All manner of responsibilities, obligations, benefits and rights have been attached (and some later detached) to civil marriage in civil law.
Beyond that framework in law, talk about the presence or absence of children, the "complimentarity" of genders, reproduction, and adult commitments to each other, and if they have children, to their biologic children, all are little matter for the United States Supreme Court today. They may simply dismiss these peripheral issues as readily as the Court did the arguments of Baker v Nelson over 40 years ago.
The assumptions the author makes, and in some comments here, about motivations of people who are married, or anyone who is not, are just conjecture - many of them wrong - about reproduction, love, commitment, why couples get married and what is recognizes by law as marriage.
No English dictionary or US law dictionary I know includes a mention or definition of "complimentarity," outside fields of mathematics, physics, color theory and a specific mention in social science psychology of interactions among two individuals (without any reference to gender or marriage).
Better stick with the "generally" accepted "redefining" of marriage of both author and in comment. Avoid making up words and meanings to "defend" marriage. Law sees right through these tactics.
Beyond that framework in law, talk about the presence or absence of children, the "complimentarity" of genders, reproduction, and adult commitments to each other, and if they have children, to their biologic children, all are little matter for the United States Supreme Court today. They may simply dismiss these peripheral issues as readily as the Court did the arguments of Baker v Nelson over 40 years ago.
The assumptions the author makes, and in some comments here, about motivations of people who are married, or anyone who is not, are just conjecture - many of them wrong - about reproduction, love, commitment, why couples get married and what is recognizes by law as marriage.
No English dictionary or US law dictionary I know includes a mention or definition of "complimentarity," outside fields of mathematics, physics, color theory and a specific mention in social science psychology of interactions among two individuals (without any reference to gender or marriage).
Better stick with the "generally" accepted "redefining" of marriage of both author and in comment. Avoid making up words and meanings to "defend" marriage. Law sees right through these tactics.
2.6.2013 | 5:36pm
Devinicus says:
Guest, you're not right that "most men and women are already not interested in marriage". Take a look at Andrew Cherlin's book "Marriage Go Round". Americans love marriage. However, what we actually love is the idea of marriage. Actual marriage is a lot less popular.
2.6.2013 | 8:34pm
yan says:
Boo,
I think you mistake 'complementarity' for 'compatibility'. Gay partners experience compatibility. What constitutes complementarity is entirely an objective question independent of the feelings of homosexuals, or anyone.
I think you mistake 'complementarity' for 'compatibility'. Gay partners experience compatibility. What constitutes complementarity is entirely an objective question independent of the feelings of homosexuals, or anyone.
2.7.2013 | 10:47am
Michael PS says:
It is a fallacy is to suppose that the purpose of civil marriage is procreation, which is manifestly false. The law makes special provision for marriage in extremis (CC Art 169) and even for posthumous marriage (CC Art 171). This would be unintelligible, if procreation were the primary purpose of marriage and a posthumous marriage confers no rights on the surviving spouse. It does however confer incontestable inheritance rights on children of the couple previously born, both to the defunct and his or her ascendants; in other words, it establishes filiation, the juridical bond between father and child
The law assumes the fact of procreation and uses marriage to regulate its consequences and, in particular, to ensure, as far as possible that the legal, social and biological aspects of paternity coincide.
Filiation, the primary purpose of marriage is irrelevant to same-sex couples
The law assumes the fact of procreation and uses marriage to regulate its consequences and, in particular, to ensure, as far as possible that the legal, social and biological aspects of paternity coincide.
Filiation, the primary purpose of marriage is irrelevant to same-sex couples
2.7.2013 | 12:28pm
yan says:
Michael PS,
In respect to why marriage is considered a fundamental right, procreation matters very much. That is what the Supreme Court case law tells us.
In respect to the purposes of civil marriage, you have committed a fallacy in assuming that because marriage is not in every case about procreation, that therefore the civil marriage is not interested in procreation. But it is obvious to everyone that reflects on the matter that the state has an enormous interest in regulating births and providing stable homes and creating the foundations of civil society without which the state and the law could not exist in their present form. Our case law in all the states have recognized these policy rationales for civil marriage countless times.
In respect to why marriage is considered a fundamental right, procreation matters very much. That is what the Supreme Court case law tells us.
In respect to the purposes of civil marriage, you have committed a fallacy in assuming that because marriage is not in every case about procreation, that therefore the civil marriage is not interested in procreation. But it is obvious to everyone that reflects on the matter that the state has an enormous interest in regulating births and providing stable homes and creating the foundations of civil society without which the state and the law could not exist in their present form. Our case law in all the states have recognized these policy rationales for civil marriage countless times.
2.7.2013 | 12:36pm
yan says:
Leslie DF,
Since the rationales for making marriage a fundamental right in Supreme Court case law deal explicitly with procreation and the raising of children, it is hard for me to imagine why the Court would consider such matters to be peripheral when it is being presented the opportunity to extend that right to individuals who by definition are unable to have children of their own. Certainly the consideration of the factual possibility of procreation is important in that context?
Since the rationales for making marriage a fundamental right in Supreme Court case law deal explicitly with procreation and the raising of children, it is hard for me to imagine why the Court would consider such matters to be peripheral when it is being presented the opportunity to extend that right to individuals who by definition are unable to have children of their own. Certainly the consideration of the factual possibility of procreation is important in that context?
2.7.2013 | 11:54pm
Chairm says:
The Baker court was correct then and it is correct today. And the proponents of SSM know that full well.
1. SSM does not require same-sex sexual attraction of those who'd SSM. If such attraction is the basis for entrenching SSM in the law,then, the SSM law would stand on a non-requirement.
Yet the SSM proponents do not blink an eye at that contradiction of their own proposed remedy. Likewise with their basic complaint against the bride-plus-groom requirement.
2. The SSM complaint against the marriage law is not based on a lack of a legal requirement: the bride-plus-groom requirement exists and they want it abolished.
But the SSM proponents insist that the law discriminates on the basis of sexual attraction. However, there is no legal requirement that makes sexual attraction mandatory for those who'd marry. And there is no such requirement proposed by SSM advocates for those who'd SSM, see point 1.
In the end, the SSM proponents want to abolish a legal requirement based on their reading into the marriage law a requirement that is not actually there; and then they want to impose SSM on the basis of a non-requirement that they themselves claim is decisive.
Of course, the fundamental difference of sex is not denied by the SSM proponents. How could they? The emphasis on same-sex sexual attraction presumes that sex difference is hugely signficant to those who'd participate in SSM. The proponents do not really argue that it is this particular person's attraction to that particular person; no, they argue that it is both of those person's attraction to their own sex that is the key to the pro-SSM complaint and the pro-SSM remedy. And, when they think that words can be emptied of meaning and a new meaning injected to contradict the common and useful meaning, the SSM proponents, as witnessed above, are ready to claim sexual complementarity applies directly to SSM, too.
If SSM proponents believed their arguments, then, they would tie themselves into knots all on their own. And they do.
1. SSM does not require same-sex sexual attraction of those who'd SSM. If such attraction is the basis for entrenching SSM in the law,then, the SSM law would stand on a non-requirement.
Yet the SSM proponents do not blink an eye at that contradiction of their own proposed remedy. Likewise with their basic complaint against the bride-plus-groom requirement.
2. The SSM complaint against the marriage law is not based on a lack of a legal requirement: the bride-plus-groom requirement exists and they want it abolished.
But the SSM proponents insist that the law discriminates on the basis of sexual attraction. However, there is no legal requirement that makes sexual attraction mandatory for those who'd marry. And there is no such requirement proposed by SSM advocates for those who'd SSM, see point 1.
In the end, the SSM proponents want to abolish a legal requirement based on their reading into the marriage law a requirement that is not actually there; and then they want to impose SSM on the basis of a non-requirement that they themselves claim is decisive.
Of course, the fundamental difference of sex is not denied by the SSM proponents. How could they? The emphasis on same-sex sexual attraction presumes that sex difference is hugely signficant to those who'd participate in SSM. The proponents do not really argue that it is this particular person's attraction to that particular person; no, they argue that it is both of those person's attraction to their own sex that is the key to the pro-SSM complaint and the pro-SSM remedy. And, when they think that words can be emptied of meaning and a new meaning injected to contradict the common and useful meaning, the SSM proponents, as witnessed above, are ready to claim sexual complementarity applies directly to SSM, too.
If SSM proponents believed their arguments, then, they would tie themselves into knots all on their own. And they do.
2.8.2013 | 4:01am
Michael PS says:
Yan
No-one will deny that the state has an interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and to the orderly succession to property.
As the French Senate declared in 2005, “the presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple's children. It is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value."
With that, I respectfully concur.
This, rather than the promotion of procreation, makes sense of marriage in extremis and of posthumous marriage, a point you do not address. It is also what makes SSM an absurdity.
No-one will deny that the state has an interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and to the orderly succession to property.
As the French Senate declared in 2005, “the presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple's children. It is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value."
With that, I respectfully concur.
This, rather than the promotion of procreation, makes sense of marriage in extremis and of posthumous marriage, a point you do not address. It is also what makes SSM an absurdity.
2.8.2013 | 11:48am
LeslieDF says:
Yan,
Not ALL court rationales, establishing and upholding marriage as a fundamental right, deal with reproduction and children.
Windsor is about taxation and inheritance. Hollingsworth, about autonomy.
Past cases about fundamental rights and about marriage dealt with: autonomy (Lawrence, Loving); discrimination without legitimate government interests (Romer); self-concept and identity (Planned Parenthood); expressions of emotional support and public commitment (Turner); privacy (Griswold). These and other cases have rationales for, as you said, "making marriage a fundamental right." None have that right resting on "procreation" and "children" as central or necessary for marriage.
Neither current case deals with reproduction and children. Neither plaintiff, Windsor, Perry, ties their marriage right to reproduction and children.
Supreme Court opinions in the current two cases may cite "procreation - children" cases. It is very doubtful any Justice will rely on such cases as central, or necessary, to concur or dissent. The majority opinion will avoid citing "procreation - children" as central to a decision. And I know none will mention the novel idea of "complimentarity" (whatever that is) as a basis for an opinion.
The US Supreme Court can no more be tricked into thinking “all” means “a majority” - whether historic, or contemporary - than it can be tricked by anyone saying “marriage” means “procreation.”
Liberty and justice for all means every one of us. And equality never obtained from being separate (for long, despite Plessy and because of Brown).
Not ALL court rationales, establishing and upholding marriage as a fundamental right, deal with reproduction and children.
Windsor is about taxation and inheritance. Hollingsworth, about autonomy.
Past cases about fundamental rights and about marriage dealt with: autonomy (Lawrence, Loving); discrimination without legitimate government interests (Romer); self-concept and identity (Planned Parenthood); expressions of emotional support and public commitment (Turner); privacy (Griswold). These and other cases have rationales for, as you said, "making marriage a fundamental right." None have that right resting on "procreation" and "children" as central or necessary for marriage.
Neither current case deals with reproduction and children. Neither plaintiff, Windsor, Perry, ties their marriage right to reproduction and children.
Supreme Court opinions in the current two cases may cite "procreation - children" cases. It is very doubtful any Justice will rely on such cases as central, or necessary, to concur or dissent. The majority opinion will avoid citing "procreation - children" as central to a decision. And I know none will mention the novel idea of "complimentarity" (whatever that is) as a basis for an opinion.
The US Supreme Court can no more be tricked into thinking “all” means “a majority” - whether historic, or contemporary - than it can be tricked by anyone saying “marriage” means “procreation.”
Liberty and justice for all means every one of us. And equality never obtained from being separate (for long, despite Plessy and because of Brown).
2.8.2013 | 12:03pm
LeslieDF says:
Michael PS,
When a Texas family court (2002) found an ex-husband liable for child-support of three sons (proved not his by DNA testing after a divorce), did that make different-sex marriage an absurdity? The court found he had understood (consented without his knowledge of the truth) to be their "father" and had raised the boys for a while as their "dad."
What do you think a family court will say to sons or daughters of a deceased father, when matters of inheritance, custody, community property are at issue with his surviving husband. A husband who may be receiving government benefits on behalf of the children, or from inheritance of the descendant's estate?
I doubt the court will dismiss the case, calling the marriage, paternity, or relationships "absurdities."
When a Texas family court (2002) found an ex-husband liable for child-support of three sons (proved not his by DNA testing after a divorce), did that make different-sex marriage an absurdity? The court found he had understood (consented without his knowledge of the truth) to be their "father" and had raised the boys for a while as their "dad."
What do you think a family court will say to sons or daughters of a deceased father, when matters of inheritance, custody, community property are at issue with his surviving husband. A husband who may be receiving government benefits on behalf of the children, or from inheritance of the descendant's estate?
I doubt the court will dismiss the case, calling the marriage, paternity, or relationships "absurdities."
2.8.2013 | 2:52pm
Michael PS says:
LeslieDF
The Texas case you cite upholds the central principle of marriage - The child conceived or born in marriage has the husband for father and its corollary, that the investigation of paternity is forbidden. Marriage ensures that filiation is clear, certain and incontestable. It is no coincidence that the first country to introduce mandatory civil marriage was France and it did so when it had just turned ten million landless peasants into heritable proprietors. Inheritance becomes simply a a matter of inspecting the public registers.
To summarise, (1) Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation – the rule that the child conceived or born in marriage has the husband for father – enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation.
The Texas case you cite upholds the central principle of marriage - The child conceived or born in marriage has the husband for father and its corollary, that the investigation of paternity is forbidden. Marriage ensures that filiation is clear, certain and incontestable. It is no coincidence that the first country to introduce mandatory civil marriage was France and it did so when it had just turned ten million landless peasants into heritable proprietors. Inheritance becomes simply a a matter of inspecting the public registers.
To summarise, (1) Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation – the rule that the child conceived or born in marriage has the husband for father – enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation.
2.8.2013 | 3:56pm
yan says:
Leslie DF,
I disagree with your analysis. Except for Loving, the rationales in the cases you mentioned provide merely ancillary support to the reasons why the Court recognized the fundamental right of marriage in the first place in Meyers, Pierce, and Skinner. For instance, if procreation is not of primary importance, then the privacy right recognized in Griswold [wrongly decided and absurd anyway, in my opinion] has no raison d'etre.
The difference between primary and ancillary support is important. It is true as you said that complementarity has not been explicitly recognized as being a basis for the recognition of the fundamental right. Nevertheless it is very arguable that it is implicit in the rationale of those cases, and I think the point should be argued because it is quite logical that in the process of recognizing marriage as a fundamental right that the Court took for granted that families and children come into being of necessity through the biological complementarity of the spouses.
This doesn't mean that procreation and complementarity are the sole grounds for recognizing the fundamental right or that the right cannot be extended on the basis of other reasons when consistent with the original reasons. But that gay marriage by definition has no relationship to those reasons is a good argument for saying gay marriage cannot be a fundamental right.
I disagree with your analysis. Except for Loving, the rationales in the cases you mentioned provide merely ancillary support to the reasons why the Court recognized the fundamental right of marriage in the first place in Meyers, Pierce, and Skinner. For instance, if procreation is not of primary importance, then the privacy right recognized in Griswold [wrongly decided and absurd anyway, in my opinion] has no raison d'etre.
The difference between primary and ancillary support is important. It is true as you said that complementarity has not been explicitly recognized as being a basis for the recognition of the fundamental right. Nevertheless it is very arguable that it is implicit in the rationale of those cases, and I think the point should be argued because it is quite logical that in the process of recognizing marriage as a fundamental right that the Court took for granted that families and children come into being of necessity through the biological complementarity of the spouses.
This doesn't mean that procreation and complementarity are the sole grounds for recognizing the fundamental right or that the right cannot be extended on the basis of other reasons when consistent with the original reasons. But that gay marriage by definition has no relationship to those reasons is a good argument for saying gay marriage cannot be a fundamental right.
2.8.2013 | 4:08pm
yan says:
Michael PS,
"No-one will deny that the state has an interest in the filiation of children being clear, certain and incontestable."
I agree.
"This, rather than the promotion of procreation, makes sense of marriage in extremis and of posthumous marriage."
I mostly agree with that as well. My argument was with your statements, "It is a fallacy to suppose that the purpose of civil marriage is procreation, which is manifestly false. The law makes special provision for marriage in extremis (CC Art 169) and even for posthumous marriage (CC Art 171). This would be unintelligible, if procreation were the primary purpose of marriage and a posthumous marriage confers no rights on the surviving spouse."
It is not unintelligible to suppose procreation is the PRIMARY purpose of marriage. The reasons for marriage in the cases you mention are ANCILLARY to that primary purpose of marriage, which is to regulate and legitimize procreation for the good of society and the state. A reason being primary, does not make it exclusive. Marriage law may serve more than one purpose.
"No-one will deny that the state has an interest in the filiation of children being clear, certain and incontestable."
I agree.
"This, rather than the promotion of procreation, makes sense of marriage in extremis and of posthumous marriage."
I mostly agree with that as well. My argument was with your statements, "It is a fallacy to suppose that the purpose of civil marriage is procreation, which is manifestly false. The law makes special provision for marriage in extremis (CC Art 169) and even for posthumous marriage (CC Art 171). This would be unintelligible, if procreation were the primary purpose of marriage and a posthumous marriage confers no rights on the surviving spouse."
It is not unintelligible to suppose procreation is the PRIMARY purpose of marriage. The reasons for marriage in the cases you mention are ANCILLARY to that primary purpose of marriage, which is to regulate and legitimize procreation for the good of society and the state. A reason being primary, does not make it exclusive. Marriage law may serve more than one purpose.
2.8.2013 | 6:53pm
Ken Zaretzke says:
Michael PS,
Although I generally agree with you, I wonder if you are not reifying positive law, or maybe are in the slightest danger of doing so. It’s hard to say, because it’s not clear whether you would deny that the general fact of procreation is the raison d`etre of marriage. By “general fact of procreation” I mean the whole group of procreation-relevant phenomena, primarily filiation (and the laws concerning it), responsible procreation (and the social matrix in which it is embedded), and sexual complementarity (a biological, anthropological, and metaphysical reality).
Unlike some of the defenders of traditional marriage that you implicitly criticize, I have always kept in mind the difference between marriage as a type (embodied in the *institution* of marriage), and marriage as a token (the individual instances of marriage, or this and that couple). I always mean marriage as a type, not as a token, whenever I mention procreation, and that means the general fact of procreation. The general fact of procreation is assumed by filiation insofar as the general fact of procreation includes complementarity (which, as you say, is itself assumed by filiation and the laws of paternity).
At least one problem with calling procreation the *purpose* of marriage is that it is confusing to say such a thing--on the face of it, there are many purposes of marriage, perhaps as many as there are reasons why couples get married. What the defenders of marriage should say, if they wish to avoid unnecessary misunderstanding, is that procreation is the *predicate* of marriage, the one thing without which the idea and practice of marriage makes little or no sense. Or as I prefer to say, the general fact of procreation is *presupposed* by the institution of marriage.
Although I generally agree with you, I wonder if you are not reifying positive law, or maybe are in the slightest danger of doing so. It’s hard to say, because it’s not clear whether you would deny that the general fact of procreation is the raison d`etre of marriage. By “general fact of procreation” I mean the whole group of procreation-relevant phenomena, primarily filiation (and the laws concerning it), responsible procreation (and the social matrix in which it is embedded), and sexual complementarity (a biological, anthropological, and metaphysical reality).
Unlike some of the defenders of traditional marriage that you implicitly criticize, I have always kept in mind the difference between marriage as a type (embodied in the *institution* of marriage), and marriage as a token (the individual instances of marriage, or this and that couple). I always mean marriage as a type, not as a token, whenever I mention procreation, and that means the general fact of procreation. The general fact of procreation is assumed by filiation insofar as the general fact of procreation includes complementarity (which, as you say, is itself assumed by filiation and the laws of paternity).
At least one problem with calling procreation the *purpose* of marriage is that it is confusing to say such a thing--on the face of it, there are many purposes of marriage, perhaps as many as there are reasons why couples get married. What the defenders of marriage should say, if they wish to avoid unnecessary misunderstanding, is that procreation is the *predicate* of marriage, the one thing without which the idea and practice of marriage makes little or no sense. Or as I prefer to say, the general fact of procreation is *presupposed* by the institution of marriage.
2.9.2013 | 5:51am
Michael PS says:
Yan and Ken Zaretzke
Absent the fact of sexual reproduction, of course marriage would not exist and so I agree with Ken Zaretzke that procreation is the predicate of marriage.
Where I differ from Yan is that I hold that the primary purpose of marriage is precisely to "regulate and legitimize procreation for the good of society and the state." The law deals with the fact of procreation (which will occur, civil marriage or no civil marriage) by using marriage to establish the juridical link between father and child. It turns a biological fact into a civil status, in much the same way that the law of property turns the physical fact of possession into the legal right of ownership.
This makes civil marriage irrelevant to same-sex couples.
Absent the fact of sexual reproduction, of course marriage would not exist and so I agree with Ken Zaretzke that procreation is the predicate of marriage.
Where I differ from Yan is that I hold that the primary purpose of marriage is precisely to "regulate and legitimize procreation for the good of society and the state." The law deals with the fact of procreation (which will occur, civil marriage or no civil marriage) by using marriage to establish the juridical link between father and child. It turns a biological fact into a civil status, in much the same way that the law of property turns the physical fact of possession into the legal right of ownership.
This makes civil marriage irrelevant to same-sex couples.
2.9.2013 | 4:07pm
Ken Zaretzke says:
Michael PS,
As we know, marriage is not necessary in order for there to be procreation. In saying that marriage presuppose procreation, I'm saying that the best explanation of the existence of marriage is the general fact of procreation--the various conditions and social implications tied up with the fact of sexual reproduction. This is not the same as saying that marriage is necessary in order for there to be procreation. (*Ordered* procreation is a different matter.)
IOW, not a trivial truth. In order to understand the point of marriage, we need to know why marriage really came about. It did not come about *simply* because humans reproduce sexually. It came about because human nature is constituted in such a way that marriage is needed in order to promote the human good. This includes the requirements of social order. When I use the phrase "human nature" in this context, I do not mean only the bare fact of sexual reproduction.
As we know, marriage is not necessary in order for there to be procreation. In saying that marriage presuppose procreation, I'm saying that the best explanation of the existence of marriage is the general fact of procreation--the various conditions and social implications tied up with the fact of sexual reproduction. This is not the same as saying that marriage is necessary in order for there to be procreation. (*Ordered* procreation is a different matter.)
IOW, not a trivial truth. In order to understand the point of marriage, we need to know why marriage really came about. It did not come about *simply* because humans reproduce sexually. It came about because human nature is constituted in such a way that marriage is needed in order to promote the human good. This includes the requirements of social order. When I use the phrase "human nature" in this context, I do not mean only the bare fact of sexual reproduction.
2.9.2013 | 10:13pm
yan says:
Michael PS,
"Where I differ from Yan is that I hold that the primary purpose of marriage is precisely to "regulate and legitimize procreation for the good of society and the state."
If that is what you are saying, I don't see that I am saying anything different. You said previously on several occasions:
"It is a fallacy to suppose that the purpose of civil marriage is procreation, which is manifestly false. The law makes special provision for marriage in extremis (CC Art 169) and even for posthumous marriage (CC Art 171). This would be unintelligible, if procreation were the primary purpose of marriage and a posthumous marriage confers no rights on the surviving spouse."
So apparently I am not understanding what it is you are saying here. It seems to me you are contradicting yourself. Can you shed some light on this?
"Where I differ from Yan is that I hold that the primary purpose of marriage is precisely to "regulate and legitimize procreation for the good of society and the state."
If that is what you are saying, I don't see that I am saying anything different. You said previously on several occasions:
"It is a fallacy to suppose that the purpose of civil marriage is procreation, which is manifestly false. The law makes special provision for marriage in extremis (CC Art 169) and even for posthumous marriage (CC Art 171). This would be unintelligible, if procreation were the primary purpose of marriage and a posthumous marriage confers no rights on the surviving spouse."
So apparently I am not understanding what it is you are saying here. It seems to me you are contradicting yourself. Can you shed some light on this?
2.11.2013 | 12:16am
Ken Zaretzke says:
What I was getting at in my February 6 comment is that commitment (which is the natural rival of procreation as a criterion of the meaning of marriage) is a continuum, very much unlike procreation. What makes this so significant in the same-sex marriage battle is that cohabitation mirrors the continuum whereas marriage--a *maximum* form of commitment only--does not. As a result, given that commitment is a continuum, shouldn’t cohabitation be expected to be society’s preferred type of intimate sexual relationship? Why is marriage legally, culturally, and morally privileged over cohabitation? (Pregnancy, too, is a continuum, but pregnancy is not constitutive of procreation.)
Society’s privileging of marriage makes no sense! It makes no sense, that is, on the *same-sex marriage* view of what marriage is--namely, as being about commitment exclusive of procreation. But then, if it’s crazy to have social institutions which happen to make no sense, maybe same-sex marriage is meant to be bigger than we have been told. Much bigger . . .
To SSM advocates, the 1960s are the Golden Age of cultural transformation. For them, basically, patriarchy is the real problem. Patriarchy is the reason the whole marriage thing is privileged. It’s why we need to hasten the revolution. Justice cries out against the scourge of patriarchy, you know? So up with marriage equality. Say it, man! Over and over and over and over and over. Drill it in peoples’ heads. But don’t get on the wrong trip. Because in the grand historical scheme of things, marriage is not that big of a deal. It’s not that heavy. It’s sort of a false consciousness thing. Of course, not everyone will get this. Reactionaries will spring up like weeds. But hey, we’ll get there. . . we’ll get there. It’s inevitable, right?
Society’s privileging of marriage makes no sense! It makes no sense, that is, on the *same-sex marriage* view of what marriage is--namely, as being about commitment exclusive of procreation. But then, if it’s crazy to have social institutions which happen to make no sense, maybe same-sex marriage is meant to be bigger than we have been told. Much bigger . . .
To SSM advocates, the 1960s are the Golden Age of cultural transformation. For them, basically, patriarchy is the real problem. Patriarchy is the reason the whole marriage thing is privileged. It’s why we need to hasten the revolution. Justice cries out against the scourge of patriarchy, you know? So up with marriage equality. Say it, man! Over and over and over and over and over. Drill it in peoples’ heads. But don’t get on the wrong trip. Because in the grand historical scheme of things, marriage is not that big of a deal. It’s not that heavy. It’s sort of a false consciousness thing. Of course, not everyone will get this. Reactionaries will spring up like weeds. But hey, we’ll get there. . . we’ll get there. It’s inevitable, right?
2.11.2013 | 4:51am
Michael PS says:
Yan
Neither a marriage in extremis nor a posthumous marriage can lead to procreation. They can, however, affect the civil status of children already conceived or born to the couple. Therefore, I conclude that the purpose of marriage is not procreation, but filiation. It can regulate (legitimize) procreation that has already occurred. Where is the contradiction?
Neither a marriage in extremis nor a posthumous marriage can lead to procreation. They can, however, affect the civil status of children already conceived or born to the couple. Therefore, I conclude that the purpose of marriage is not procreation, but filiation. It can regulate (legitimize) procreation that has already occurred. Where is the contradiction?
2.11.2013 | 3:06pm
Ken Zaretzke says:
Michael PS,
Our distinctive approaches have in common the idea of sexual complementarity as foundational to marriage, by which we both mean physiological complementarity--the only kind that is not specious. I assume we also agree that, because the biological purpose of sexual union is reproduction, complementarity necessarily implies a *capacity* to procreate. What is that, exactly? To be comprehensible in light of human experience, a capacity to procreate must be understood as intrinsic in all opposite-sex couples (including the sterile and aged). These couples possess that capacity by virtue of their physiological complementarity.
Alternative conceptions of marriage, to be worth giving the time of day to, must have some way of plausibly replacing traditional marriage’s account of procreation. At a minimum, revisionist notions of marriage must successfully redefine sexual complementarity. However, it’s specious to think of complementarity in a way that does not have the physiology of sex acts as a necessary condition, and this is a big hurdle for those newfangled notions.
You might or might not agree with a further conclusion I draw. It may be that SSM fails so badly as a conception of marriage that it can rightly be regarded as unreasoned or irrational, as opposed to merely mistaken.
If so, the belief in “marriage equality” is a repetition of the irrationality of Marxists and their liberal fellow travelers who believed private property could be abolished and society might nevertheless thrive. Of course, social utopia was never going to happen the way Marxists envisaged. Yet ideology overwhelmed reason among the liberal intellectuals and pseudo-intellectuals. They specialized in vilifying their opponents, as everyone above a certain age is aware.
History is repeating itself, as anyone knows who has foolhardily tried to cross the lines of the politically correct orthodoxy regarding same-sex marriage.
Our distinctive approaches have in common the idea of sexual complementarity as foundational to marriage, by which we both mean physiological complementarity--the only kind that is not specious. I assume we also agree that, because the biological purpose of sexual union is reproduction, complementarity necessarily implies a *capacity* to procreate. What is that, exactly? To be comprehensible in light of human experience, a capacity to procreate must be understood as intrinsic in all opposite-sex couples (including the sterile and aged). These couples possess that capacity by virtue of their physiological complementarity.
Alternative conceptions of marriage, to be worth giving the time of day to, must have some way of plausibly replacing traditional marriage’s account of procreation. At a minimum, revisionist notions of marriage must successfully redefine sexual complementarity. However, it’s specious to think of complementarity in a way that does not have the physiology of sex acts as a necessary condition, and this is a big hurdle for those newfangled notions.
You might or might not agree with a further conclusion I draw. It may be that SSM fails so badly as a conception of marriage that it can rightly be regarded as unreasoned or irrational, as opposed to merely mistaken.
If so, the belief in “marriage equality” is a repetition of the irrationality of Marxists and their liberal fellow travelers who believed private property could be abolished and society might nevertheless thrive. Of course, social utopia was never going to happen the way Marxists envisaged. Yet ideology overwhelmed reason among the liberal intellectuals and pseudo-intellectuals. They specialized in vilifying their opponents, as everyone above a certain age is aware.
History is repeating itself, as anyone knows who has foolhardily tried to cross the lines of the politically correct orthodoxy regarding same-sex marriage.
2.11.2013 | 11:48pm
Ken Zaretzke says:
If they think they need it, defenders of traditional marriage can find encouragement in the fact that there’s at least one entirely secular argument they can rely upon. This is the idea of the underdeterminacy of the commitment criterion of marriage--the idea that commitment, as the standard of what makes marriage *marriage,* is unable to explain why society evolved beyond cohabitation to marriage. In other words, commitment causally underdetermines marriage. Specifically, it underdetermines the institution of marriage (as distinguished from Jack and Jill’s particular marriage and any other particular instances of marriage).
Procreation, in contrast to commitment, provides a satisfactory account of why marriage exists. It tells us a lot, though not everything, about the nature of marriage. One of the things it tells us is that marriage is barely comprehensible, and less than coherent, if it includes same-sex couples. For any conception of marriage which regards same-sex couples as marriageable in effect says there is no real difference between marriage and cohabitation. This, of course, defies reason. We know there is a big difference between cohabitation and marriage.
The reduction of marriage to cohabitation constitutes a per se harm to marriage. Does that mean judges should feel free to strike down laws permitting same-sex marriage, perhaps doing so under the general welfare clause of the Preamble? I hope it does not mean that. Same-sex marriage should be decided by legislatures or plebiscites, not by judicial fiat.
Procreation, in contrast to commitment, provides a satisfactory account of why marriage exists. It tells us a lot, though not everything, about the nature of marriage. One of the things it tells us is that marriage is barely comprehensible, and less than coherent, if it includes same-sex couples. For any conception of marriage which regards same-sex couples as marriageable in effect says there is no real difference between marriage and cohabitation. This, of course, defies reason. We know there is a big difference between cohabitation and marriage.
The reduction of marriage to cohabitation constitutes a per se harm to marriage. Does that mean judges should feel free to strike down laws permitting same-sex marriage, perhaps doing so under the general welfare clause of the Preamble? I hope it does not mean that. Same-sex marriage should be decided by legislatures or plebiscites, not by judicial fiat.
