The Meaning of Marriage

Yesterday I mentioned E.J. Graff's book, What is Marriage For? which not only demonstrates how marriage has changed in the West, but also the many different facets of marriage.  Some have claimed that marriage was once about children, and now is more focused on adults and that is why SSM is now possible but a bad idea.  They believe it would reinforce this dangerous shift in our understanding of marriage.  I disagree with this claim on many levels.  I believe marriage has always been about much more than just children.  I believe it has been the case that while marriage is important for children, children are not essential for marriage.  Nor does SSM shift this focus anyway, as many same-sex couples have children and marriage would be quite important for them.  I presented a different view for how marriage has changed and now suits SSM more than it did before.   That is, civil marriage in our society is now egalitarian.  I think the essential aspects of marriage concern the mutual support, interdependence, and expectation of permanence.   It is important for children that their parents have this relationship, but the relationship itself is not dependent on the children.  Nor is the relationship unimportant or inconsequential to society should there be no children present. 

In any case, SK Elkins does an excellent job of looking at the laws of marriage, especially common-law marriage, and where their focus lays.  It seems clear that children are not relevant in determining whether a marriage is valid, but the interdependence and mutual support are.  For a detailed look at Massachusetts laws cocerning marriage and their focus check out the amicus brief (pdf) filed by the Boston Bar Ass'n in the Goodridge case.  As I know many people don't enjoy reading either pdf files or legal briefs let me quote from the summary:

Massachusetts laws recognize and enforce the public commitment, intimacy, and economic interdependence of married couples, bestowing significant benefits and obligations upon parties based on marital status and providing protections for their families and children....

The law honors and reinforces the intimate and confidential nature of marriage by bestowing upon spouses a duty of fidelity and priority in medical decision-making, granting certain rights to a decedent's spouse, including exclusive rights or priority to bring certain tort claims when a spouse is negligently injured or killed....

The law also recognizes the economic interdependence of married couples, granting to them special property ownership protections, death benefits, insurance and employment leave benefits, tax protections, workers' compensation benefits, veterans' benefits, and MassHealth benefits, and providing specially for public employees their spouses and families.  Divorce laws provide a set of predictable and settled rules the guide the dissolution of a marriage....

Marriage confers a set of rights and duties that dramatically alters the legal status of the persons within the marriage vis-a-vis each other, the state, and third parties.  Marriage provides a distinct social status triggering an expectation of mutual commitment and emotional and financial interdependence.  The law buttresses these expectations.  Withholding the law's recognition of the marriage commitment from same-sex couples harms those couples, their children and thier families and creates an untenable disparity. 

One of the most persuasive points, in my mind, in support of the idea that children are not the only purpose of marriage is the fact that the consequences upon the death of a spouse do not depend on whether the couple ever had children.  At that point it's no longer an issue of "we can't be sure that they won't have children someday" or "it would be too intrusive to test for fertility" [as if society would like to keep infertile couples from marrying if only it could].  It would be easy enough to restrict those consequences upon death to marriages that had produced children.  We rightfully don't because we recognize there is so much more to marriage.      

Comments

[lucia]

it would be too intrusive to test for fertility"
I don't really "get" this idea.

When I married my husband the state of Illinois performed a very simple, non-intrusive test to determine whether we were already married. The woman behind the counter asked: "Are either of you already married". We answered "No".

The state performed no other checks. (The Catholic church did however.)

Had we lied to the nice lady at the county office, our marriage would be legally void.

I am sure that if state legislators had wished to bar the infertile from marraige, they could have the required the nice lady behind the desk to ask us if, to our knowledge, either of us was infertile.

They don't ask. They don't render your marriage void if you are infertile.

[Galois]

Exactly. I am amazed that people even have the nerve to make this argument. It implies that the state would really like to stop all infertile couples from marrying, but do even the lawyers making that argument really believe that's true? And yet a few courts in the 1970's did accept the "too intrusive" argument.

[Ben Bateman]

"I am sure that if state legislators had wished to bar the infertile from marraige, they could have the required the nice lady behind the desk to ask us if, to our knowledge, either of us was infertile."

But the couple may not know whether they're infertile. In fact, no one may know, unless you're talking about castration or a hysterectomy.

Besides which, there is no real contradiction between allowing the infertile to marry and saying that marriage is intended to encourage responsible procreation. That's confusing the intent of a law with its actual effects. I'm working up a long post for MarriageDebate trying to explain that.

I take a little offense at needing to have "the nerve" to deny the infertility argument. If you want to hear from the other side, you've got to allow for the possibility that reasonable people can disagree with you.

[chairm]

>"I am sure that if state legislators had wished to bar the infertile from marraige, they could have the required the nice lady behind the desk to ask us if, to our knowledge, either of us was infertile."

That's a commonly expressed notion in the SSM argument.

The legislators and even the nice lady, and probably the two of you, had no reason to presume that your combination would be one of the rare instances of infertility.

Not so for same-sex couples who are innately sterile as a union; they are not infertile in the sense of marriage. They are infertile in the same sense that an individual's solitary sexual activity is sterile. Individuals do not marry; couples marry.

By your account it would be right to presume that two men or two women are sterile; but highly uncertain to presume that a man and woman together are infertile. For man-woman couples to be treated as same-sex couples, we'd have to presume that they all were infertile and then demand proof that they were not.

When a couple has tried but failed to have a child, they might be considered infertile. It is such a personal matter that public policymakers have not intervened. We don't ask people to live together for a year -- or to engage in premarital sex for a year -- to establish their fecundity.

And we don't need to ask the same of same-sex couples because their relations are presumed to be sterile. To state the obvious: a same-sex couple cannot concieve a child no matter how long they try.

Look at it from the other direction. There is a millenia-long trend of man-woman sexual relations producing offspring. (Heh). To prevent procreation would generally require a good deal of human intervention. And even our modern methods frequently fail unexpectedly. We talk of unintended pregnancies, for example. Even if abortion is used as a form of birth control, it requires a tremendous intervention by society and by the individuals (ethically, morally, medically, legally, and so forth).

But same-sex couples can confidently expect that their sexual relations will not create progeny. No human intervention is required to prevent procreation when the couple wishes to avoid a pregnancy. Every same-sex couple must go outside of their marital bond to conceive a child by one, not both, of the individuals. Otherwise, there is no need to expend energy in preventing a same-sex couple from reproducing themselves. The intervention goes in the other direction.

In the sense of marriage, at its core, the procreative model is a one-way street. SSM would turn the traffic signs and traffic lights to face away from the flow of oncoming traffic.

[lucia]

But the couple may not know whether they're infertile.

If you read my suggested question, I included the clause "to your knowledge". Some people do know. They can answer. It's less intrusive that a blood test, which was required at the time we married.

The state makes absolutely no attempt to prevent couples who know they are infertile from marrying.

In fact, no one may know, unless you're talking about castration or a hysterectomy.

Bingo!

The legislators and even the nice lady, and probably the two of you, had no reason to presume that your combination would be one of the rare instances of infertility.

Did the nice lady have any reason to presume that we would be one of the rare couples who intended bigamy?

Which is more common, bigamy, or hysterectomy?

[Galois]

I take a little offense at needing to have "the nerve" to deny the infertility argument.

Actually, I said it took "nerve" to make a certain argument, and that was specifically making the argument that "we would like to stop all infertile couples from marrying, but it is just too intrusive to test". As Lucia has noted, it is not too intrusive to ask if to the best of one's knowledge one is fertile. It is not too intrusive to note that a sixty year old woman is not going to conceive. To paraphrase Chairm we can confidently expect that sexual relations with a sixty year old woman will not result in progeny. More importantly it implies that we really don't want any infertile couples to marry. Reasonable people can disagree on quite a bit, including what marriage is for, but for a lawyer to get up in court and say we'd like to stop infertile couples from marrying if only we could, that takes some nerve.

I did not say that this is your position, though. As you note...

there is no real contradiction between allowing the infertile to marry and saying that marriage is intended to encourage responsible procreation

Hence there is no real contradiction in allowing same-sex couples to marry and saying that marriage is intended to encourage responsible procreation.

[lucia]

Moreover, if permitting obviously infertile couples to marry, as we have always done, presents no danger to marriage, then permitting obviously infertile couples to marry presents no danger to marriage!
QED!

[Ben Bateman]

"Which is more common, bigamy, or hysterectomy?"

That comparison doesn't make sense. Bigamy is a crime. A hysterectomy is a surgery. The rate of bigamy depends on how likely people think they are to be caught. The rate of hysterectomy depends on the rates and severities of certain cancers. The rates are not related.

Also, bigamy is a relatively clear matter that can be determined entirely within the legal system. From a legal standpoint, you were either married or you weren't, and you were either divorced or you weren't. It's reasonable to expect people to know whether they're already married. It isn't reasonable to expect people to know whether they're infertile.

Thinking about this further, all these practical points are only part of the story. As Gabriel suggested, if you start talking about cost/benefit analyses of denying marriage to the infertile, it implies that the government would deny marriage to them if it could. That probably would have been true in past, but it's probably not true today.

I've already sent a post to MarriageDebate on this, but I'll set up my objection to the infertility argument in the abstract:

The logical structure of the Infertility Argument:
1. If law X is based on principle Y, then the details of law X should be consistent with principle Y.

2. In some particular, the details of law X are not consistent with principle Y.

3. Therefore, law X is not based on principle Y.

The fallacy here is in assuming that the details of a law are determined only by its primary principle. In the real world, laws are affected by many conflicting principles, and the details of a law reflect that. A law can be based primarily on one principle and yet make concessions to other principles.

[lucia]

I did want to add. The 'bingo' refers to my obsevation that Chairm list of cases where one knows one is infertile includes my case.

I realized later that the list is incomplete, and some readiers might misinterpret my "bingo" to mean that that list was correct. In reality, one may reasonably know one is infertile for a number of additional reasons including vasectomy, tubal ligation, removal of ovaries, menopause or other factors.

I add the word "reasonably" to modify "certain", because, of course, one may also sometimes be in doubt as to factors that might render your marriage void. The famous historical case of Rachel Jackson presents a example of a man and woman who accidentally committed bigamy.

Although not historical, the story of
oedipus suggests that, as a result of adoption, one might not know ones hereditary relatives and marry one of them. Many states void these marriages should anyone enter into them either on purpose or accidentally. Of course, Oedipus and Jocasta each did something more drastic.

[lucia]

"Which is more common, bigamy, or hysterectomy?"

That comparison doesn't make sense. Bigamy is a crime. A hysterectomy is a surgery.

Taken out of context that statement makes no sense. Moreover, I'll admit the question was a rhetorical response to chairm's rather disingeneous idea that the "nice lady behind the desk" doesn't enquire about infertility because she had no reason to presume it.

My motive in quoting his statement was to suggest that I was, in fact, responding to it.

In fact, I believe the "nice lady behind the desk" asks that question about prior marraige because the questoin is required by law. She does not "presume" anything.

I'll be happy to see your argument on marraigeDebate.com. Shall I send my tautology? If X then X? It's has the beauty of brevity.

[Galois]

Ben,

I, too, look forward to reading your argument on MarriageDebate.com. I'm afraid, however, that you misunderstand the infertility argument. When SSM proponents point to the fact that we allow the infertile to marry, it is not a proof that marriage is not based on procreation. [Although, it is used as one piece of evidence, to support the claim that marriage is not primarily about procreation].

The more important aspect of the fertility argument is it points out that exact logical fallacy that you point out yourself. Even if one assumed that marriage was indeed primarily about procreation, that does not mean same-sex couples should be denied marriage because they can't procreate. As you said, "the law can be based primarily on one principle and yet make concessions to other principles". We can allow same-sex couples to marry as a concession to other principles (like equality, like liberty, like the benefit of marriage to child rearing, like the vast number of other benefits of marriage explained in Rauch's latest book, etc.)

The fact that same-sex couples are infertile does no harm to marriage. While it is better that procreation, when it occurs, happens only in the context of marriage. It does not follow--nor do I believe it is true--that marriage, when it occurs, include the act of procreation.

[Galois]

Some other less famous examples of people unknowingly committing bigamy taken from my wife's old crim law book.

In Staley v. State 131 N.W. 1028 (Neb. 1911) a man was informed by three lawyers that his first marriage was void (because it was a first cousin), but after remarrying he was schocked to learn that his lawyers were wrong and he was convicted of bigamy.

Long v. State 65 A.2d 489 (Del. 1949) and People v. Vogel 299 P.2d 850 (Cal. 1956) both ruled that, unlike in Nebraska, a reasonable mistake of fact was a defense to a bigamy charge (although I assume that the second marriages were declared void). They cited an English case, Regina v. Tolson 23 Q.B.D. 168 (1889) in which a woman remarried after reasonably but erroneously assuming her husband was dead. (I don't know if people were outraged that the U.S. courts looked to a foreign court for the decision).

[lucia]

Ben,
I want to comment on why I agree with Gabriel on this:

for a lawyer to get up in court and say we'd like to stop infertile couples from marrying if only we could, that takes some nerve.

The reason it would take some nerve is because almost no one would agree with the lawyer. Many would been horrified at the suggestion that one could not marry because one was infertile. Many would still be horrified.

As to my own opinion: I would be horrified!

[Ben Bateman]

Gabriel,

You've presented an interesting twist on the infertility argument. I think that most SSM supporters use it to deny that marriage is about procreation. (That's certainly how I interpreted Lucia's recent post on MarriageDebate.)

Your version is very different, and I don't disagree with its logic. In fact, it seems like a good way to frame the debate. I know that you have a keen interest in the benefits of SSM for adopted children, but I don't think that's what's really driving the push for SSM. I suspect that the crux of the underlying disagreement is about differing views of homosexuality. To use the framework of this discussion, I want to propose an infertility argument in favor of SSM. I don't agree with this argument, but it might help focus the debate:

1. Marriage is about procreation. But we also don't like to discriminate against the disabled. So we should allow the clearly infertile to marry.

2. Marriage is about procreation. But we also don't like to discriminate against homosexuals. So we should allow same-sex couples to marry.

[lucia]

Ben,

Part the difficulty is that you have edited a word out of my statement which was:

The idea that civil marriage is only about procreation is a myth.

Instead, you understand me to say this:
to deny that marriage is about procreation.

In my opinion, removing the word "only" from my statement changes my meaning, and tends to make it sound much more dramatic.

A second part of the problem is that you are removing a word from your previous statement, which I quoted in my response:

"Marriage is properly about procreation--the making of babies."

I believe removing the word "properly" changes your meaning and tends to make your claim sound more moderate.

My opinion is that non-procreative marriages, like my own 20 year heterosexual marriage, are just as proper as procreative marriages. The reason my marriage is just as proper as anyone else's is that marriage is not only about children or even properly about children.

I certainly agree that, in some sense, marriage can be seen to be about children. However, to agree wholeheartedly, I would need to hear a person define precisely what they mean by "about children". I could also provide my definition of marriage being "about children".

Like Gabriel, I believe marriage is a great benefit to children. I would advise those considering conceiving or adopting children to first enter into a stable relationship. If marriage is possible, they should enter into it.

[Galois]

Ben I don't agree with the argument you put forward either. Since neither of us agrees with it, what is the point of putting it forward?

As Lucia points out we need to make a distinction between marriage being only about procreation, and marriage being about procreation. You have argued before for this same distinction. If it is not only about procreation--and you seem to agree with that--then marriage can still fulfill other purposes. Once again we disagree with whether marriage is primarily about responsible procreation, but that disagreement is fairly irrelevant. Since SSM does not cause irresponsible procreation there is no conflict in values and hence no need to debate the priority of the values.

[Ben Bateman]

Lucia: On the dispute about the precise relationship between procreation and marriage, I don't see a point in quibbling over "properly" versus "primary" or whatever. The more interesting word is "about," which is also unclear. This is why I tried to explain that marriage can be "about" procreation without every detail of marriage law being totally consistent with that purpose.

The degree to which a law is "about" a principle is properly determined by studying legislative intent. If we were to do the historical research, I suspect that we would find that procreation has been very much on the minds of legislatures and their committees studying family law bills.

Gabriel: "Since SSM does not cause irresponsible procreation there is no conflict in values and hence no need to debate the priority of the values."

As is so common in the SSM debate, I don't agree with the premise. I think SSM would very likely encourage irresponsible procreation.

It would devalue marriage by making it less exclusive. How you can expand the group of people who will receive incentive a benefit without devaluing the benefit?

If people have a wider range of partners to marry, then they're less likely to choose the person with whom they're going to produce a child.

Historically, we've already demolished much of marriage, and seen the results. We've eliminated the stigma of unwed motherhood and the legal difficulties of getting a divorce. And today as a result we have millions of children raised in single-parent homes. We got the same arguments back then that we're getting today: It won't hurt your marriage? The harm will be small. But the harm was not small, and while it didn't fall on those who changed the law, it fell on those who came after: my generation.

Considering that the fates of millions of innocent unborn children are bound up with the future of marriage, I need more than a breezy assertion that SSM won't devalue marriage and encourage illegitimacy.

[Ben Bateman]

P.S. Gabriel: The reason for the disability/homosexuality syllogism is that I suspect that differing views on SSM come from differing views about discrimination and homosexuality: Is homosexuality like disability: an unavoidable status that deserves legal protection? Or is it a behavior over which people have significant conscious control and therefore responsibility?

I'm just throwing out a theory to try to understand the debate:

The elites strongly favor viewing homosexuality as equivalent to race: It's something you're born with that can't be chosen, so the law shouldn't disadvantage you in any way for that accident of birth. This is why they like the miscegenation argument.

Most actual voters disagree. They think that homosexuality is mostly a behavior, not an accident of birth. So on SSM they think that those who commit to a person of the same sex has chosen a lifestyle that isn't eligible for marriage, just as someone who chooses to live alone has chosen a lifestyle that isn't eligible for marriage. (And someone who chooses to live only with family members has chosen a lifestyle ineligible for marriage.)

Again, this is just a theory, not an argument. I'm still mostly mystified at what the reasonable SSM supporters are thinking. But it always seems to come back to a basic disagreement on the nature of homosexuality.

[chairm]

[quote]
Moreover, I'll admit the question was a rhetorical response to chairm's rather disingeneous idea that the "nice lady behind the desk" doesn't enquire about infertility because she had no reason to presume it.
[/quote]

Lucia, you seem to have misread my post.

The presumption is not the nice lady's but that of the procreative model at the core of civil marriage which is acknowledged in the man-woman criterion of marital licenses.

The example of infertile couples does not overturn the model. As particular instances, such marriages represent exceptions that *test* (and very likely reinforce) the model, whereas the example of all instances of same-sex couples overturns the model. In other words, even if the nice lady asked, and you answered to the best of your knowledge, there would be no contradiction in permitting a marriage license for you and your fellow applicant -- infertile as you or he might be -- while denying a license to two men or two women.

The procreative model is not a minor aspect of marriage itself. It is not some evil excuse to mistreat homosexual individuals. Bonding men and women with their children is at the heart of marriage as a social institution. This ideal may apply less to this or that particular man-woman couple but more importantly it shapes relations between men and women in general, across society and across generations. While your 20-year old marriage may be non-procreative, it is not outside the procreative model (which is not just narrowly about outcome of the procreative act of a particular couple). Same-sex couples cannot conform to that model and find themselves on the outside.

Perhaps stating the obvious is not enough and only poets can articulate the concept satisfactorily. I dunno.

I fail to see why the natural boundaries of marriage must be replaced by the artificially androgenous and blurred lines of the SSM template. The model espoused by the SSM advocates (minorities in the homosexual community) may emerge as a new ideal for homosexual domestic life, but it does not follow that it is now, or ever will be, the normative ideal for all of society.

Yet that is what the procreative model is and has been for a very long time.

[lucia]

chairm:
If you honestly believe I could be expected to infer 6 paragraphs you post above from your statement

"The legislators and even the nice lady, and probably the two of you, had no reason to presume that your combination would be one of the rare instances of infertility."

you must believe I am psychic.

Possibly others are, and they inferred it.

Instead my respond attempted to address the points, which I, lacking psychic powers, thought were contained in that sentence. My response included these ideas:

1) infertility is not rare.
2) the nice lady (and the legilators) made no presumptions about my infertility. The legislators simply did not make any law barring me from marrying and the nice lady didn't ask because the legistlators made no such law did not.

Other than that, the rest of the post seems to collapse say:
1) marriage is only about procreating.
2) All evidence to contradict premise 1 should be ignored.
3) points 1&2 put together are obvious.
4) making claims 1,2 & 3 is not an evil plot.
5) perhaps I, chairm, should write a poem.
6) let's use the word androgenous.
7) many homosexuals don't want to get married.

As it happens, I have not accused you of an evil plot. I am puzzled by your use of the term "androgenous" to describe the marriage of two women to each other. If you feel the need to write a poem do so. I'll be happy to read it.

If I have completely mis-interpreted your argument, please clarify! I would not wish to misinterpret again, as I clearly did before.

[Galois]

It would devalue marriage by making it less exclusive. How you can expand the group of people who will receive incentive a benefit without devaluing the benefit?

Pretty easily. Marriage is not a commodity. Whenever somebody marries it does not devalue my marriage. If it did, I would be hoping less people would marry, so that my marriag would be more valuable. On the contrary, I think it is great when people marry. Fatherhood is no less valuable because others become fathers. Love is no less valuable because others love. Health coverage is no less valuable when others receive it. When interracial couples were allowed to marry that didn't make marriage any less valuable.

If people have a wider range of partners to marry, then they're less likely to choose the person with whom they're going to produce a child.

That seems to be an argument that SSM would discourage procreation. Not that it would encourage irresponsible procreation. Is that a reason you oppose SSM, because you want gays to marry people of the opposite sex and procreate? If so, it seems to contradict your first point above which would claim any marriage devalues your marriage, and hence you would want gays to abstain from marriage.

Considering that the fates of millions of innocent unborn children are bound up with the future of marriage, I need more than a breezy assertion that SSM won't devalue marriage and encourage illegitimacy.

But you are making the claim that it will devalue marriage. So I need something from you to back up this claim. That it will allow more people to marry doesn't convince me it will devalue marriage as I explained above.

The elites strongly favor viewing homosexuality as equivalent to race: It's something you're born with that can't be chosen, so the law shouldn't disadvantage you in any way for that accident of birth. This is why they like the miscegenation argument.

I have occasionally seen people compare homosexuality to race, but those that do misunderstand the miscegenaton arguement. Sex should be compared to race there. Sex is something you were born with and can't be chosen so the law shouldn't disadvantage you in any way for taht accident of birth. Just as race shouldn't be used as a classification to deny marriage, sex shouldn't be used either. In this case homosexuality would be comparable to the desire to miscegenate. In fact I think homosexualtiy is more inherent in one's character than a desire to miscegenate, but for the purpose of this argument that is irrelevant. Even if homosexuality were a choice, it is a personal choice comparable to the choice to marry a person of a different race.

I'm not so sure, though, that most voters view homosexuals as having chosen to be homosexuals. Certainly deciding to have sex with someone is a choice, but I think most people think there is such a thing as people who are only capable of romantic bonds with people of the same sex. What is your view about homosexuality? Do you see it as just a choice. You happened to choose a woman, but could just as easily have chosen a man for your life partner.

[lucia]

Ben said: "On the dispute about the precise relationship between procreation and marriage, I don't see a point in quibbling over "properly" versus "primary" or whatever. "

I can understand why you prefer not to quibble, since you prefer to simply delete both your modifiers and mine. Had I edited your meaning and provided an argument against to counter one you never produced, and then proven the actual statement you made correct, I too, would not wish to quibble over my editorial changes.

However, if you do not wish to discuss these recent editorial changes, I am content to stay away from them.

The way I will do that is this: I will not bring this specific quibble up again until you do! (I reserve the right to point out future editorial changes that modify the meaning of my statements.)
----------------
Ben said:
"If we were to do the historical research, I suspect that we would find that procreation has been very much on the minds of legislatures and their committees studying family law bills."

You admit textual reading of the laws which we sought out and provided does not support your claim. You now tell us you confident that knowledge of history would, if only you were to do the research. Why not do the historical research and provide the evidence?

Barring research and evidence, your confidence simply indicates that you are happy to make bald claims!
----------
Ben said:
"It would devalue marriage by making it less exclusive. How you can expand the group of people who will receive incentive a benefit without devaluing the benefit?" Some dire warnings about past decisions leading to what Ben considers the current calamitous situation follow. This is followed with predictions that forbidding SSM is necessary to prevent further calamities.

My answer veers off the SSM topic. However, I am reminded of my father's arguments when I was a child; he made a similar claim. He believed that permitting women priests in the Roman Catholic Church would devalue the benefit of priesthood for men by making it more widely available and less exclusive. Then, the number of priests would drop to a dangerously low level.

The Church did admit women to the priesthood; the number priests has declined.

Might I conclude that this decline was caused by the Church's decision not permit women priests?

After you answer, we can discuss the meaning of " post hoc, ergo propter hoc"

-------
Finally Ben said:
"I need more than a breezy assertion that SSM won't devalue marriage and encourage illegitimacy."

The civil liberties of many adults, the health care, welfare and education of existing children, and my taxes lie in the balance. I need more than a breezy assertion that SSM will lead to the end of the world as we know it.

[Galois]

The example of infertile couples does not overturn the model. As particular instances, such marriages represent exceptions that *test* (and very likely reinforce) the model, whereas the example of all instances of same-sex couples overturns the model.

I'm trying to understand this. The infertile couple is okay because it's just an exception. Why aren't same-sex couples just an exception? Yes no same-sex couple can procreate, but no infertile couple can procreate either. It's all a matter of how you draw the lines.

Of course, once we allow any exception it is clear to me that there are other purposes of marriage besides procreation. The phrase, "Marriage is about procreation, except when it's not", is another wonderful, but useless tautology. If there are other purposes of marriage besides procreation, then what is the problem if a non-procreative couple (including a same-sex couple) were to enter into marriage for these other purposes?

[chairm]

Galois,

>>"Yes no same-sex couple can procreate, but no infertile couple can procreate either. It's all a matter of how you draw the lines."

Infertility is frequently a temporary condition and is treatable. The example of the infertile couple (or more generally the childless couple) is within the procreative model and is an exception in appearance only. The example of the same-sex couple is outside of the model and as such it is an exception that confirms the model. It is useful to examine more closely both the apparent exception and the actual exception.

But I've not gone into greater detail out of a courtesy to Ben and his upcoming commentary at marriagedebate. I'll continue to wait, but will follow Ben's lead if he has no objections to delving into the subject here already.

>>"once we allow any exception it is clear to me that there are other purposes of marriage besides procreation."

There are other purposes, of course, even now without SSM. Many of these purposes are actually located within the procreative model: bonding men and women across society; uniting fathers and mothers with their children both in particular instances of married couples and in the general influence of the social institution of marriage across generations and cultures. But I think that the ideal of marriage today includes a hierachy of purposes, whereas the SSM template doesn't seem to prioritize the list yet -- but I may have missed something.

>>"If there are other purposes of marriage besides procreation, then what is the problem if a non-procreative couple (including a same-sex couple) were to enter into marriage for these other purposes?"

The childless married couple poses no show stopping problem. A same-sex couple could not enter marriage for any purpose. But if SSM would replace marriage with something else, then, the answer to your question might depend on the list of purposes you have in mind. And how these are ranked, if at all. And whether that list would suffice as the new normative ideal for all of society.

In discussions about SSM I find that the unspoken but essential assumption is that the prototyical same-sex couple would be form a 'mutually loving and committed relationship'.

That is, the *loving* is equated to that of married couples -- and sexual monogamy is strongly implied. And commitment is equated to the sort of bond between man and wife (which itself is based on the likelihood of procreation in the prototypical marriage).

With the implementation of SSM, what would you think of two straight men, or two straight women, forming a buddy union which society would then be required to consider as the equivalent of marriage?

[chairm]

Lucia, in the first of my posts in this thread to which you have responded, I had said the following from which the relevance of the procreative model might be inferred if not read:

>>"We don't ask people to live together for a year -- or to engage in premarital sex for a year -- to establish their fecundity. And we don't need to ask the same of same-sex couples because their relations are presumed to be sterile. To state the obvious: a same-sex couple cannot concieve a child no matter how long they try."

I described the procreative model of marriage in the first post and reiterated the basic concept in the second. All the same, you said,

>>"The legislators simply did not make any law barring me from marrying and the nice lady didn't ask because the legistlators made no such law did not."

The lawmakers operated on the societal assumption that the procreative model was at the core of marriage itself and well within the edges regulated by the state in the form of civil marriage.

But you seem intent on claiming that since they made no law to bar infertile couples that this silence was loaded with the purpose you ascribe it: that the ommission served to remove the procreative model from the context in which society, through the state, understood marriage and set forth its regulations.

Proof of fertility would indeed be an intrusion on applicants for a civil marriage license; and it would go much further than the formality of a checkbox on the application form or an additonal test in a medical examination. The requirement amounts to certainty of fertility and that would make premarital sex and pregnancy a prerequisite for a marriage license. It might also necessitate a system to monitor and police the procreative acts of married couples. I'm not sure how abortion would fit into the scenario but governmental interference in private lives would not survive a back-of-envelope calculation of the costs and benefits. The presumption stands in place of such unreasonable requirements. As per the quote at the top of this post from my first post.

It seems you would minimize the degree of intrusion that would be necessary; and you would maximize the importance of your interpretation of the lack of a regulation requiring such an intrusion in the first place. I think you are mistaken at both ends.