I have written about the "procreation argument" a number of times on this blog. In December 2003 I responded to an article by Eve Tushnet which led to a further series of posts from her and from me. A year ago I responded to an op-ed by Douglas Kmiec which led to a lengthy discussion in the comments. (In both cases I apologize about all of the dead links). As I've noted more recently many states are dropping the procreation argument because it seems to make little sense. The issue, though, has come up a number of times lately in this blog.
In comments to this thread, Chairm takes exception to my drawing attention to exceptions. I believe most of his concerns were based on a misunderstanding of my argument. I do not point to exceptions in order to make the claim that "Since there are exceptions, the general rule must not hold." That would be silly. Rules can always have exceptions. I pointed to the fact that in some states certain couples are allowed to marry only if they cannot marry. This does not indicate that marriage has nothing to do with procreation, nor even that procreation is not the primary purpose of marriage. It does, however, provide strong indication of a number of things. It shows, for example, that the legislature has contemplated the situation of a non-procreative couple marrying and deemed it acceptable, not because it would be too difficult to determine procreative ability, but rather because there are also other purposes to marriage. It also indicates that marriage is not harmed by allowing non-procreative couples to marry. In the comments I explained the situation as follows. A theater may wish to keep cans of soda confined to the lobby and out of the theater for fear the soda might spill and damage the seats. That is a reasonable policy and the fact that some people might sneak sodas in, or the fact that the ushers to do not think it worth the effort to search all bags, does not indicate that the theater would like to keep soda cans out. Thus it is still perfectly reasonable to stop a person from obviously carrying a soda can into the theater. However, if the theater allowed some people into the theater when they were obviously carrying soda cans, or even allowed them into the theater only if they had soda cans it becomes doubtful whether the ushers are truly concerned about soda cans entering the theater. At the very least the theater would need to explain why certain people bringing cans in was harmful and others bringing cans in was not harmful. It is at this point in the discussion about procreation--when proponents of same-sex marriage prohibitions argue about why it does no harm to marriage to allow say elderly couples to marry, but not same-sex couples to marry--that it is often revealed that the underlying rationale involves a reliance on traditional gender stereotypes.
These discussions lead me to ask directly, "What is the harm in allowing a non-procreative couple to marry?" One common response is that it would send the message that marriage is not about procreation. That is simply not true. It would only support the statement that procreation is not the sole purpose of marriage. There are a number of other purposes of marriage and allowing same-sex couples to marry would be a mere recognition of this indisputable fact. Nephtuli, though, does provide some detail about the harm in allowing same-sex couples to marry. He writes:
Society has many reasons to integrate the sexes; one such reason is procreation. Every society has an interest in surviving and to exist it needs to breed new members. That idea is best realized through opposite sex couples having children. Society therefore supports procreation by promoting integration. Integration is this vein should be promoted.
Obviously if we allowed SSM, men and women would still integrate since the vast majority of the public is heterosexual. But one could also argue that without preferences universities would still accept members of the preferred minorities. The idea is that a lower number would be selected and that goes against a state interest.
If we allowed SSM, less men would integrate with women and vice versa. The reason is that (some) homosexuals have historically married people of the opposite gender when no other avenue was available. Whether it was societal pressure or legal recognition, homosexuals did marry members of the opposite gender and procreated. Today we have a much lower level of societal pressure, but for now the only legal avenue for recognition is heterosexual marriage. It would stand to follow that some homosexuals who would enter into SSMs if they had the opportunity might do so.
Without question there are people who are attracted to both sexes or people who are more attracted to their gender but are still attracted to the opposite gender. Many of these people would choose marriage and the benefits it provides over a non-marriage relationship with a member of his/her sex. That choice has a much higher probability of resulting in procreation than a same sex relationship.
But if we allowed SSM, many of those people would likely choose to enter into that relationship. Society is therefore promoting procreation by leaving open only one avenue for marriage.
At least this is an argument. If we allow same-sex marriage, some individuals who would otherwise have entered into an opposite-sex marriage will now choose instead to enter into a same-sex marriage, thus decreasing the chance of having babies. The state would therefore like to prohibit same-sex marriage in order to get more people into opposite-sex marriages and thereby hopefully increase the number of babies being born.
From a policy perspective, this sounds like awful governmental policy to me, the idea that we should pressure people into opposite-sex marriage. From the court's perspective, though, we must restrict ourselves to asking whether this is a compelling governmental interest and whether the restriction is necessary to achieving this objective. (Or in states where gender classifications are subject only to intermediate scrutiny we would ask whether it is an "important governmental objective" and whether the restriction is "substantially related to the achievement of that objective.) Channeling people into having more babies, though, is probably not even a legitimate governmental interest. It is clear from a number of court decisions that we possess the right as individuals to make our own decisions with regards to marriage and procreation. The government certainly has an interest in seeing that babies that are born are cared for to the best of our ability. It has an interest in helping those that wish to have babies to do so. It does not have an interest though in pressuring an individual to procreate. That choice belongs to the individual and not the government. [Again, from a policy perspective, I would argue that there is no need for more babies. Rather we should focus on caring for the babies that are born.] Even if the interest in baby production was a legitimate state interests, in fact even it were an important governmental objective, the policy of prohibiting same-sex marriage can hardly be said to be substantially related to this objective. The argument is that by denying the recognition of one's same-sex marriage, one might instead seek out an opposite-sex partner, and then one might procreate with that partner, thereby having a child whereas one might not have had a child with a same-sex partner. The policy is certainly not narrowly tailored, as couples who have children in same-sex relationships are still denied marital recognition (incidentally doing a great deal of harm to the child) and the denial of recognition is no guarantee that anyone will seek out an opposite-sex spouse instead, much less an opposite-sex spouse with whom they will subsequently have a child.
Finally I would note that the channeling of people into opposite-sex marriage is not likely the true rationale for the policy of denying same-sex marriage. I have certainly seen no evidence that lawmakers are refusing to recognize same-sex marriages out of fear that people will choose such relationships over heterosexual relationships. As J. Ginsburg noted in US. v. Virginia, "Benign justifications proffered in defense of categorical exclusions, however, must describe actual state purposes, not rationalizations for actions in fact differently grounded."
By the way, in that same post Nephtuli wrote the following concerning definitions:
To use my earlier example could someone who wished to marry a tree argue that he is being discriminated against and then require the state to provide a rational basis for this classification? Of course not. Can anyone imagine a court going through the whole Equal Protection analysis and then forcing the state to provide a rational basis for its law? I certainly cannot. The court would likely just point out that trees simply cannot marry.
There's no difference between a man-tree marriage and a SSM. Legally, neither cannot exist by definition.
In addition to being extremely offensive, this analogy makes no sense. If the tree were to bring suit, the case would get thrown out because trees can't bring suits. (The classification being used is one of human beings, a classification that is more than acceptable as only humans have rights under our Constitution). If the human were bringing suit the case would get thrown out because it has nothing to do with how the human is classified. Nobody has the right to marry that tree. Unlike humans and trees, men and women are both individuals deserving of equal protectiono of the laws. His analogy is indicative of the denial of our common humanity embedded in gender discrimination. An apt comparison would instead have been to Pace v. Alabama. There it was argued that, by definition, a same-race couple could not violate section 4189 of the Alabama Code. By definition it could only be violated by a member from each race. As the court wrote, "Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment." Nephtuli is right in one regard. When the court resorted to that definition it threw out the case with almost no analysis.
I'll add more about the cousin example, and the elderly example, and the faults in your argument regarding procreation. But for now, let's look at the analogy you've offered.
>> However, if the theater allowed some people into the theater when they were obviously carrying soda cans, or even allowed them into the theater only if they had soda cans it becomes doubtful whether the ushers are truly concerned about soda cans entering the theater.
This doesn't include dinner theater, right? [smile]
Whatever solution the theater came up with, let's not assume that they were being frivolous or arbitrary.
Your analogy might work if the exception was not so easy to notice in the theater. Maybe an exception might be made because a person had a doctor's note that advised him not to sit for a couple of hours without access to his medication and some water. Perhaps the theater would prefer him to avoid heart failure (or a wheezing attack or whatever) while remaining seated rather than risk distrubing the other customers in the middle of the movie.
To protect the seats, maybe they'd ask the few exceptions to use a water bottle with a drip-free straw rather than a soda can.
If the solution was more trouble than it was worth, the theater could drop it after trying it out -- without implying that people had a fundamental right to bring soda cans into the theater.
On the other hand, perhaps the exception of obvious soda cans are really analogous with the unisexed combination.
Analogies tend to distract from the salient points in the marriage discussion. Finding an apt analogy is not an easy task, really, so I don't fault you for the effort. But I'd rather not deconstruct/construct analogies when we have solid examples that illustrate the salient points.
Posted by: Chairm | March 14, 2005 at 01:49 AM
But I'd rather not deconstruct/construct analogies when we have solid examples that illustrate the salient points.
I didn't mean to be a distraction. I just wanted to explain that I was not simply arguing "There is an exception, therefore the rule cannot hold". What I have been arguing is that it is possible to allow a couple who cannot procreate--even one who clearly cannot procreate--to marry without doing any harm to the institution of marriage. Nor is it true that a marriage only benefits society if that couple procreates. So please do stick to solid examples. When the Goodridges were wed, how did that do harm to the institution of marriage? And do you believe it did any good for the couple, for their child, or for society?
Posted by: Galois | March 15, 2005 at 08:16 PM
>> When the Goodridges were wed, how did that do harm to the institution of marriage? And do you believe it did any good for the couple, for their child, or for society?
The harm done begins with the court's untruthful declaration that nonmarriage is marriage.
But the examples to which I referred were those dealing with procreation.
A unisexed couple is not an exception to the procreative model in which they do not qualify for inclusion.
You used the example of cousins. At the moment I don't the time to comment at length, but I'll return to discuss the flaws in your comparison with the unisexed combination. And your continued misapplication of the example of inter-racial marriage.
Posted by: Chairm | March 16, 2005 at 06:47 AM
Galios ask directly, "What is the harm in allowing a non-procreative couple to marry? One common response is that it would send the message that marriage is not about procreation."
If we allow a single couple that is legally prohibited from procreating to marry, it would do mare than send a message, it would strip all marriages of the procreation rights that used to come with marriage. That would be terrible, it would mean that each marriage's procreation rights would be open for prohibition for eugenic reasons. In order to guarantee that all people are allowed to procreate, we have to guarantee that all marriages are allowed to procreate, and that all people are allowed to marry. Of course, we must continue to prohibit certain marriages, such as siblings, children, and (now) same-sex couples, because their procreation would be unethical, for a number of reasons. Same-sex procreation, no matter what the specific method, would be unethical. All people should be created from a woman's egg and a man's sperm, and we should prohibit any experiments into conceiving people from two eggs, two sperm, cloning, etc).
Posted by: John Howard | April 01, 2005 at 04:27 PM
John, your argument makes no sense. A same-sex couple cannot produce both an egg and a sperm. It would be unethical to conceive a child through something other than the union of egg and sperm. Since it is not possible for same-sex couples to conceive children in the only ethical way, you conclude we must prohibit their marriage or else "strip all marriages of the procreation rights that used to come with marriage". An opposite-sex couple in which the man is incapable of producing sperm or the woman is incapable of producing an egg is at the same disadvantage. It is not possible for such a couple to conceive children in the only ethical way. By your logic we must either license such couples the right to have unethical genetic experiments done on their behalf, or else strip all marriages of procreation rights.
The good news is that we do not need to do this. Your logic is flawed. There is no problem with our current system wherein we allow married couples to engage in sexual relations, but do not use the fact that some married couples cannot conceive in that manner as an excuse for scientists to engage in whatever genetic experiments they could imagine.
Posted by: Galois | April 02, 2005 at 09:33 PM
>> There is no problem with our current system wherein we allow married couples to engage in sexual relations, but do not use the fact that some married couples cannot conceive in that manner as an excuse for scientists to engage in whatever genetic experiments they could imagine.
Surely you do not mean to reserve to the government the power to dissallow what our current system presumes? This seems very like the logical result of the flawed SSM infertility argument. An intrusive result that you have disowned.
That some couples experience subfertility, infertility, and sterility is the very reason that experimentation has taken place and continues to take place in the expanding field of ARTs. Recently a womb was transplanted from one woman to another, for instance. Given the low success rates of some of the leading edge procedures, experimentation with embryos continues to be the way forward.
At least some same-sex couples can be expected to welcome the promise of same-sex procreation as the way to intermix their genes. What would really stand in their way?
If SSM were to be enacted as all that marriage is, and if you concede that same-sex procreation is unethical and ought to be banned, on what basis would you empty SSM of the freedom to procreate within it? And how could that be done given the equality argument?
The intermixing of egg and sperm through technical procedures has been an aid to the man-woman couples who experience difficulty in childbearing. Most couples are married, but there are no restrictions on the lone unwed person's access to ARTs.
The primary contributor to subfertility is the postponement of childbearing and the increased risks of contracting diseases of the reproductive organs. Rather than prevent the problem, our society has increasingly grown dependant on technological fixes. It is hard to see how the entire unisexed combination could be expected to not become overly dependant on technologies that "fix" their so-called disadvantage. Afterall, if man-woman couples are "allowed" to procreate together, same-sex couples can claim that right within SSM.
I'll leave it to John Howard to describe how same-sex procreation fits into the context of cloning, genetic manipulation, and donation of eggs and sperm.
Posted by: Chairm | April 03, 2005 at 06:41 AM
Surely you do not mean to reserve to the government the power to dissallow what our current system presumes? This seems very like the logical result of the flawed SSM infertility argument. An intrusive result that you have disowned.
I don't know what you're talking about. Your whole post seems to be making the point that we currently have ART. I agree. That is not a consequence of same-sex marriage. John's argument is (1) Children should only be born through the union of egg and sperm (2) A same-sex couple cannot produce egg and sperm (3) Allowing a same-sex couple to marry grants them the right to procreate (4) Since they cannot procreate in the only ethical way, it would grant them the right to procreate in unethical ways. I am noting that we could repeat this argument for say any couple where the woman is postmenopausal.
That you can point to ART which you think should be disallowed is fine. You can push for banning any or all ART procedures. It is simply not the case that one can only prohibit them if one prohibits same-sex marriage. It is also certainly possible to prohibit some forms of ART and not others, as well as possible to prohibit certain genetic experiments. Whether sam-sex couples are allowed to marry is irrelevant to these debates.
If you're implying that I must support intrusive fertility testing, you are incorrect. First of all, by John's logic once the couple is married they have a right to procreate which must necessarily include a right to have scientists engage in any and all genetic experiments that could possibly lead to that. According to him, to deny any couple this "right" would be to "strip all marriages of procreation rights". Do you believe that follows as well? It doesn't matter that you "presumed" them fertile. Once this couple comes forth and declares themselves infertile they must, according to John, be allowed to do whatever it takes to have a child with genetic ties to both parents or else we would be denying that couple the "right to procreate". At the point that the couple declares themselves (or are declared) infertile we have no choice--again according to John's reasoning--but to either declare their marriage invalid or allow the scientists to procede with whatever experiments they think might help. So by John's reasoning allowing any infertile couple to marry whether it is known or unknown, is problematic. But even if we were considering a different issue in which only allowing couples that we KNOW are infertile to marry is problematic, we are still left with the issue of a 70+ year old woman marrying. It is no more intrusive to assume that such a woman cannot produce an egg than it is to presume a man cannot produce an egg.
Posted by: Galois | April 03, 2005 at 11:21 AM
galios: "I am noting that we could repeat this argument for say any couple where the woman is postmenopausal."
No you can't! What you are missing is that after we pass the law to prohibit all attempts at non egg and sperm procreation, which we have to pass for ethical reasons and which has nothing to do with marriage, then same-sex couples will not have a right to procreate by any method whatsoever. They won't even have the right to try. The post-menopausal couple is not prohibited from attempting to procreate. There could be (and there certainly should be) restrictions on the technology a clinic might offer to them, but they are not denied, completely, across the board, access to every single technology or technique that might ever be invented to allow them to procreate. They are allowed to try. Their procreation would not be illegal. There are no age limits.
>"Once this couple comes forth and declares themselves infertile they must, according to John, be allowed to do whatever it takes to have a child with genetic ties to both parents or else we would be denying that couple the "right to procreate"."
Not at all! Suppose that a certain form of IVF was banned by the FDA or Congress (and we will have to suppose, for there aren't any restrictions on the industry at all). That couple will simply have to try a different method. It's none of our business what methods they do try, as long as they don't try a banned one. We aren't prohibiting their procreation across the board - rather, they certainly have the right to procreate. We are only prohbiting a certain method. They still have a right to pursue other methods that would join their gametes.
>It is no more intrusive to assume that such a woman cannot produce an egg than it is to presume a man cannot produce an egg.
Men can only produce sperm by definition, because a sperm is a "male gamete". If he can or cannot produce them is a matter of medical privacy, but the fact that he would produce sperm and not eggs is not private. If a person produces eggs, that person is a woman. A 70 year old woman has a right to produce an egg and procreate with her husband.
Posted by: John Howard | April 04, 2005 at 05:47 PM
>I'll leave it to John Howard to describe how same-sex procreation fits into the context of cloning, genetic manipulation, and donation of eggs and sperm.
Ok, well, as to the proposed egg and sperm law, all of those would be illegal except the donation of eggs and sperm. Basically, everything we do now would still be legal, but all those things that "no one wants to do anyway" would be illegal - joining two eggs, cloning, synthesising DNA from a genetic sequence, adding animal genes, adding extra genes from other humans, etc. The law is not just about safety, or preventing birth defects (though those are certainly the most defensible and sensible reasons), it also for more romanitic reasons - to ensure that men and women remain vital to each other, and that all people are created equal, as the union of one person of their sex and one person of the other sex, and to ensure that all people have the same right as everyone else to create offspring the same way - no one is creating 'super' offspring or something.
Posted by: John Howard | April 04, 2005 at 06:48 PM
The post-menopausal couple is not prohibited from attempting to procreate. There could be (and there certainly should be) restrictions on the technology a clinic might offer to them, but they are not denied, completely, across the board, access to every single technology or technique that might ever be invented to allow them to procreate. They are allowed to try. Their procreation would not be illegal.
But they are incapable of procreating with an egg and sperm the same way a same-sex couple is incapable of procreating with an egg and sperm, so like the same-sex couple it would be illegal for them to try. Any procreation by the couple would have to be done somehow without an egg. But you have said such procreation is indeed illegal. What possible technology could you legally offer to this couple that you couldn't offer to a same-sex couple? None. Thus all attempted procreation by this couple would be illegal and according to you that must mean we can subsequently "strip all marriages of procreation rights".
That couple will simply have to try a different method.
What alternate method?!?! The woman is physically incapable of producing an egg the same way a man is incapable of producing an egg. You talk about other methods that would join their gametes, but the woman is NOT producing gametes! Thus ANY method they try will be illegal.
A 70 year old woman has a right to produce an egg and procreate with her husband.
She has as much right to produce an egg as a man has a right to produce an egg. They are, however, equally incapable of producing eggs. No amount of "rights" to the contrary is going to change that for either of them. I'm reminded of a scene from Monty Python's Life of Brian:
Posted by: Galois | April 04, 2005 at 09:44 PM
The woman is physically incapable of producing an egg the same way a man is incapable of producing an egg.
Not quite the same way... no, not even CLOSE to the same way. Say for argument's sake (for Monty Python's sake), that the woman had frozen a few of her eggs years earlier -- she is certainly entitled to try to use them now.
Not to step on John's argument -- he'll defend it alot better than i can. But the more i think about what he's trying to say (and yes, it took me a couple of weeks to grok it all), the more i think he's really onto something here. Keep hammering away fellas.
Posted by: Marty | April 04, 2005 at 10:21 PM
Say for argument's sake (for Monty Python's sake), that the woman had frozen a few of her eggs years earlier -- she is certainly entitled to try to use them now.
Fine, say that if you'd like. Now say there is another woman who did not freeze a few eggs. She has as much chance of producing an egg as a man. She and her husband together have absolutely no abilty to procreate through the union of egg and sperm. Since all legal avenues for procreating are gone John would say they are being denied their right to procreate with all of the dire consequences that entails. Of course this is an absolutely ridiculous argument. They are not being denied the "right to procreate". They are simply incapable of doing so through any legal means. Likewise even after John's beloved egg and sperm law, a same-sex married couple is not being deneied the "right to procreate". They are simply incapable of doing so through any legal means. He may claim that the first couple still try to combine an egg and a sperm. By that token, so can the same-sex couple. Neither will ever succeed.
Not to step on John's argument -- he'll defend it alot better than i can.
He can hardly fail to do so.
But the more i think about what he's trying to say (and yes, it took me a couple of weeks to grok it all), the more i think he's really onto something here.
Then you, too, are struggling with reality.
Posted by: Galois | April 04, 2005 at 10:51 PM
Galois, I'll add something later about same-sex procreation. For the moment I'll walk through some of the problems I see in your comments about the *apparent* exceptions to the presumption of procreation.
I think the point has been made many times on your weblog, and in other discussions in which I've seen your participation, that narrow exceptions -- whether apparent or actual -- are inevitable when making laws. On procreation you place far too much weight on forseeable outcomes derived from very narrow exceptions. Your rhetoric has tended to distort important terms. You and I have already discussed the meaning of fertility and infertility, for instance.
In another thread you seemed to support the idea that same-sex couples are procreative because some homosexual individuals have adopted children. This distorts the meanings of procreaton and adoption. The latter mimics the former as it attempts to make-up for a shortfall. But when a unisexed combination adopts, the imitation is distant from the original model of childbearing and childraising.
I've explained that, by far, most children in same-sex households have migrated from homes in which at least one of the same-sex partners used to be involved in a procreative relationship (typically marriage) with his or her opposite sex. The children in same-sex households are mostly children of divorce who still have both moms and dads and have the same potential legal protections that other children of divorced parents have. But this seems to be brushed off as if ARTs and adoption are affirmative action programs for same-sex couples. This connects with the topic of same-sex procreation. More on that later.
On the importance of these points we disagree, clearly, but I think it illustrates a pattern in the SSM argument that takes a term, guts it of its meaning, and substitutes some other meaning that conveniently serves the SSM argument. Perhaps this is inevitable in a cause that would substitute the meaning of marriage itself even as it attempts to appropriate the elevated status of this essential social institution.
Posted by: Chairm | April 05, 2005 at 06:40 AM
For the sake of discussion, let's declare that people aged 70 and over will be denied marriagability on the apparently safe assumption that old age is proxy for sterility.
However, even if an elderly woman cannot produce eggs, that does not mean that all men her age are incapable of producing sperm. Ordinarily men remain potent for most of their lifetimes. Perhaps the age restriction should apply only to women.
Also, the we'd miss all of those women who'd reach menopause in mid-life. On average women reach menopause at age fifty. Some experience premature menopause in their early twenties; others in their early sixties have experienced childbearing. Perhaps the restriction should be based on biological age rather than chronological age. All women, at least, should be tested for the capability to ovulate reliably.
The use of age as proxy for sterility would not be well tuned to the target population. At the very least, a large and detailed list of exceptions would be necessary. Or the government would need to deploy the means by which to determine the biological age of individuals who want to marry.
But what's the point? The marriage idea very much includes the notion of longevity well-past childbearing age. Society has always had many elderly couples living within marriage. The intergenerational family has been as much a bedrock social institution as marriage itself.
Besides, it is unclear how you'd imagine that government would have denied the marriagability of the elderly couple while continuing to recognize the marital status of the couple who grew old together. Clearly, the old bride and her old groom do not overturn the example of the long-married wife and husband.
Sure, you say you don't advocate barring the elderly, but your SSM argument assumes the state can make marriage into whatever it wants. That procreation is a side issue -- because if it was central then society would have banned elderly couples from marrying. It is an absurd train of thought.
In any case, to support your argument you have narrowed your search for an exception. You might narrow it further again.
Posted by: Chairm | April 05, 2005 at 06:42 AM
You began by attempting to include the entire unisexed combination in the category of infertile couples. This was a mistake but you wanted to brush that aside as a semantic quibble. The fact is that no two people of the same sex can be considered fertile, infertile, or subfertile together. Their inability to procreate together is not the result of ageing. They do not *become* incapable.
Perhaps you'd point more narrowly at the example of disabled people.
Again, there are disabled married couples who already had children prior to becoming disabled. Their example is not overturned by couples who marry after becoming disabled. The marriage idea includes the notion of the man-woman couple forming a community in sickness and in health.
About 60% of couples who experience infertility have at least one child. About 15% experience the condition for reasons unknown and a large portion will bear children anyway. Some take a couple of years and some take several years. Most couples who seek medical treatment for infertility do not use high-tech interventions but depend on advice about their fertile periods of the month. (Actually, all man-woman couples who eventually prove to be fertile will not have been capable of conception during most days of each month.) In any event, man-woman couples who have trouble producing offspring together also experience tensions as a result and this heightens the risk of busting-up. It would undermine marriage to intervene in such circumstances.
Perhaps the disability for which you search is narrowed to permament sterility that would be forseen without attempts at premarital conception and childbearing.
About 1% of infertile couples are childless due to medically necessary treatments (such as chemotherapy or surgery for cancer or diseases of the reproductive organs) that have rendered either the man or the woman permamently sterile. On the other hand, society has many more permamently sterile married couples who have produced offspring together prior to their disability. We also have those who are sometimes referred to as "sterile" due to tubal ligations and vasectomies -- both of which are subject to failure rates and both of which can be reversed or otherwise overcome. Note: Niether tubal ligation nor vasectomy prevent the production of eggs and sperm.
But suppose we declare that no permamently disabled couple may marry. To enforce this the government must intrude to predict the childless outcome. As I said earlier, premarital childbearing would undermine marriage. And piling on to the couples who experience sterility due to the misfortune of illness just seems a bizarre way to promote the marriage idea of in sickness and in health.
Also, once again, it is unclear how the government might continue to recognize the marital status of the couple who married prior to their disability while denying the marriagability of a disabled bride and groom. The effort to weed-out the relatively few who might be detected would be a highly questionable use of resources. And wouldn't serve a worthy goal in the first place.
If a condition makes a marriage void, then, it doesn't matter how long the couple might have been living as if married. You don't advocate such, but your reasoning does require that the government would investigate couples both prior to and subsequent to their wedding. The purpose -- to monitor sexual intercourse and to discover if there is a permament medical conditon that would void the marriage. Or at least subject the marriage to a form of probation that could lead to its dissolution.
It is again unclear how the freedom to procreate (or not to procreate) within marriage would survive the reasoning in your argument.
At the very least, your infertility argument (now more like a sterility argument) suggests that you conclude that procreation is not at the heart of marriage because society has not imposed these restrictions based on age and/or disability.
You say that the inclusion of the elderly and the disabled shows that marriage has purposes in addition to procreation. That's true even where procreation is a "safe" presumption.
But your argument amounts to a complaint that the lines might theoretically be drawn more effectively *within* the context of the man-woman criterion. It does not show that the unisexed combination ought to be considered as just another narrow and rare exception to the presumption of procreativity.
The entire set of same-sex couples stands outside of the procreative model that sustains our society and which, through civil law, the government recognizes as marriage.
There may or may not be benefits to state recognition of the homes setup by presumptively nonprocreative unmarriagable combinations -- including homosexual twosomes. But this does not necessitate that nonmarriage be treated as if it were marriage.
Posted by: Chairm | April 05, 2005 at 06:51 AM
>But they are incapable of procreating with an egg and sperm the same way a same-sex couple is incapable of procreating with an egg and sperm, so like the same-sex couple it would be illegal for them to try.
No it wouldn't! We aren't dealing with hypotheticals here. It is legal for a married couple to try to procreate no matter how old or apparently incapable they are. If they succeed, whether by IVF or vitamins or diet and exercise or prayer - their procreation is legal. The egg and sperm law WILL make it illegal for a same-sex couple to procreate by any method, using any technique, even prayer.
>Any procreation by the couple would have to be done somehow without an egg. But you have said such procreation is indeed illegal. What possible technology could you legally offer to this couple that you couldn't offer to a same-sex couple?
Why do you say that a male-female couple would not be able to use an egg? Every person has a right to their fertility, they have a right to get healthy and stay healthy. We don't need to know the medical details of any individual - we can just look at the birth certificate and see that this person has eggs or sperm. If they never procreate because of some problem, then they never procreate. They don't have to! But they have a right to, unlike same-sex couples, who would be prohibited from procreating. Again, this isn't hypothetical - they've done it in mice. Do you think that two women have a right to procrate or don't you? If they don't have a right to procreate, they are in a completely different situation from a couple with the right to procreate that simply cannot. The gay couple certainly can, they've done it in mice, but they are prohibited by law from attempting to, by any method. No marriage can be prohibited by law from procreating.
>>That couple will simply have to try a different method.
>What alternate method?!?! The woman is physically incapable of producing an egg the same way a man is incapable of producing an egg. You talk about other methods that would join their gametes, but the woman is NOT producing gametes! Thus ANY method they try will be illegal.
Sexual intercourse will not be illegal, silly! And she has a right to get healthy and produce gametes, using legal medicine and procedures. All people have a right to produce gametes (Skinner established this), and their sex is determined by the sex of the gamete they produce. If someone produces eggs, they are a female, if they produce sperm, they are a man.
Posted by: John Howard | April 05, 2005 at 12:12 PM
>She and her husband together have absolutely no abilty to procreate through the union of egg and sperm.
In this age of medical techonology, it is no longer a question of ability but one of rights! She and her husband have the right, in principle, to procreate, whether they can or not. Same-sex couples, quite practically in this age of technology, will not have the right to attempt to procreate.
Do you think that Steve should have the same right to procreate with Adam that he does with Eve? Or do you think that an egg and sperm law ought to be enacted to prevent people from attempting to combine two eggs or two sperm, or cloning?
Posted by: John Howard | April 05, 2005 at 12:17 PM
I think I see part of the problem John. You seem to think that everybody either produces eggs or sperm. "[W]e can just look at the birth certificate." This is not true. Some people are unable to produce either eggs and sperm, and no amount of vitamins, prayer, or sexual intercourse can change that. If you can claim that these couples can still "attempt" to procreate through these means, you can just as easily claim that a same-sex couple can "attempt" to create an egg and a sperm through these means. It is impossible for both couples to procreate in this fashion, but nothing not even your beloved egg and sperm law can stop either couple from taking vitamins, praying, and having sex.
That Japanese mouse you keep ranting about is completely irrelevant. It is irrelevant not because it required two eggs as opposed to two sperm. It is irrelevant not because the procedure would only work in a mouse and not humans. It is irrelevant not because it was absolutely essential to the procedure that an infant's egg be used. It is irrelevant because even if we actually could create a baby from two eggs or two sperm your argument would be completely illogical, because the problem has nothing to do with whether the man who marries a man is capable of producing sperm. All that matters for your "reasoning" is that he is incapable of producing an egg. Sure he may take vitamins and pray that he will someday produce an egg, but he simply cannot because he lacks ovaries. A woman who lacks ovaries (and yes she is still a woman even without ovaries) is likewise incapable of producing an egg no matter how much she prays or how many vitamins she takes. This is the biology you do not seem to understand. There is no problem with either couple praying, taking vitamins, or having sex. There is a problem with EITHER the man or the woman genetically mutating other cells of their bodies in order to create something that will join with the sperm cells of their respective husbands. So either neither couple has been denied the right to procreate in so far as they can pray for eggs, or both couples have been denied the right to procreate because the only avenues that could lead to procreation have been barred.
Posted by: Galois | April 05, 2005 at 10:11 PM
Chairm,
It is part of my nature and training as a mathematician that I realize the value of counterexamples. A counterexample proves a statement false. Thus the counterexamples I mention regardless of how narrow prove the following statements FALSE.
- It is necessary to procreate in order to be married.
- It is necessary to have the ability to procreate in order to be married.
- It is necessary that there might be an ability to procreate in order to be married.
- It is necessary that we not carve out an exception to our marriage laws which would explicitly permit a couple who cannot procreate to marry.
- Explicitly allowing a couple who cannot procreate to marry implies marriage has nothing to do with procreation.
- Permitting certain couples which cannot procreate to marry is only done because of concerns that it would be too difficult or intrusive to discover this fact.
I could go on. Counterexamples also serve another purpose, though. They are useful to bear in mind when formulating new hypotheses. Thus I might consider a number of these examples in suggesting the following statements which I believe to be TRUE: (note the counterexamples are NOT proofs of these statements. They are merely are helpful in formulating them)- A marriage which does not or cannot procreate may serve many other societal interests.
- Marriage may be very helpful and important in raising children.
- It is important for a married couple to remain together even after the children are grown.
- Even when a couple is dissimilar to the ideal in some ways, it may resemble it in others.
- When we talk about the connection between procreation and marriage, the idea that a couple which may procreate ought to be married is far more important than the idea that a couple which marries ought to procreate.
It is along the last lines that I get the most bothered by many of your statements like for example: I have never made the claim that procreation is a side issue much less used elderly couples to support that claim. I agree that it would be an absurd train of thought. I have used examples, like the elderly to disprove certain statements and guide my beliefs in making other claims. (see especially both statement fives above)On the issue of adoption it seems to me that you are saying that a couple which adopts a child is so dissimilar to a couple which raises a child born to them, that marriage is irrelevant for the former. If that is indeed what you are saying I vehemently disagree. If that is not what you are saying I would like to clear up this misunderstanding immediately.
Posted by: Galois | April 05, 2005 at 11:31 PM
Your ducking the question. Do you think that two women have a right to try to procreate together or don't you? This is an important question, and, not coincidentally, it is the sine qua non right of marriage. Please answer this question, don't duck it again. And please, if you insist on a right to procreate with another man, then don't leave it out the next time someone asks you what rights you want.
There is no doubt that the egg and sperm law would prohbit two people of the same-sex - and only two people of the same sex - from procreating together. It would not prohibit ANY both-sex couple from procreating. There is a PERFECT correleation between a person's sex and the type of gametes they would produce, it makes no difference that some people cannot. Ability to procreate has never been a requirement for marriage. However, couples that were forbidden from procreating have ALWAYS been forbidden to marry (siblings, etc).
Posted by: John Howard | April 06, 2005 at 10:41 AM
And please don't just repeat that two women have the same right to procrate that an infertile couple has, because as I have repeatedly told, all married couples DO have a right to procreate, in that they can not be prohibited from procreating, though various technologies may (hopefully) be prohibited. Same-sex procreation would be prohibited, flat-out, across the board, no matter what the method. On the other hand, all marriages have the right to procreate, whether they can or not.
Is it getting clearer?
Posted by: John Howard | April 06, 2005 at 04:13 PM
John,
You can't honestly accuse me of ducking the question in one post and then ask me not to repeat my answer in a next post. That is an indication that I did indeed give an answer, but you just don't like it. Too bad. I will try to make my answer even more clear to you.
If by "right to procreate" you simply mean the right to have sex (and take vitamins and pray), or to use any other available legal technology, then YES same-sex couples should have the right to procreate.
If by "right to procreate" you mean the right to devlop and or use whatever technology would be necessary in order for that couple to conceive a child, then NO I do not think same-sex couples (or opposite-sex couples) should have the right to procreate.
If by "right to procreate" you mean something else, then you need to be explicit and specific about what you mean by the "right to procreate" before I can give you an answer. (If you intend "right to procreate" to mean whatever I think it should mean, then my answer is YES as above).
Now, I have given you the courtesy of answering your questions a number of times. Perhaps you can answer one of mine. You say same-sex procreation would be prohibited, flat-out, across the board, no matter what the method. That means there would be no permitted method by which they could procreate. What permitted method is there that would allow a woman without ovaries or a man without testicles (neither of whom previously froze eggs or sperm) to conceive with someone?
Posted by: Galois | April 06, 2005 at 05:15 PM
Thanks for making your answer clearer. We don't ask people if they have ovaries or testicles or not. We treat everyone equally, all people have the same rights, including the right to marry and attempt to procreate. Say Steve has no testicles, he still has a right to marry and procreate with Eve, because his procreation, if it were to occur, would combine his sperm and her egg. All we know is that their procreation never occurs, or maybe some sort of technology or medicine comes along that restores his health, and their procreatio ndoes occur. It was never prohibited by law that Steve and Eve may not attempt to procreate. Contrast this with Steve and Adam, who we know that if they were to procreate, it would combine two sperm, and therefore would be illegal, it would be prohibited by the egg and sperm law.
If you think that sodomy is an attempt to procreate, then gee, I guess sodomy would be prohibited by the egg and sperm law also. That's good. But I have a feeling you don't really consider sodomy an attempt to procreate. What would be an attempt to procreate would be things like the parthenogensis and other attempts at nuclear transfer. Unlike Steve and Eve, Steve and Adam would publicly be legally barred from procreating.
I'm glad you are against developing the technology to allow same-sex couples to procreate, but would you support a law that made it illegal for couples even if they are not against it? Do you support the egg and sperm law? Once that law is passed, it will not effect a single both-sex couple. Not one both-sex couple would be told, when applying for a marriage license, that, because of the egg and sperm law, they are barred form procreating, and denied a marriage license. But EVERY same-sex couple would be told that. You do appreciate the concept of privacy, don't you?
Posted by: John Howard | April 06, 2005 at 05:53 PM
We don't ask people if they have ovaries or testicles or not. We treat everyone equally, all people have the same rights, including the right to marry and attempt to procreate.
Actually that's not quite true. In Arizona, for example, in order for first cousins to marry they must either be over the age of 65 or provide evidence from a doctor that they are unable to procreate. Now I don't support requiring notes from doctors before marrying (and I don't support the Arizona law). I think a couple should be allowed to marry regardless of their ability to procreate. I don't think that does any harm to marriage to allow couples who cannot procreate to marry. Nor do I think that it sends a message that procreation and marriage are unrelated. It simply says even if a couple cannot procreate there still may be great value in their marriage.
Say Steve has no testicles, he still has a right to marry and procreate with Eve, because his procreation, if it were to occur, would combine his sperm and her egg.
What "his sperm"? He has no sperm. I could say their procreation, if it were to occur, would combine his skin cells and her egg.
If you think that sodomy is an attempt to procreate, then gee, I guess sodomy would be prohibited by the egg and sperm law also. That's good. But I have a feeling you don't really consider sodomy an attempt to procreate.
You are correct. I do not. I likewise do not view sex with a seventy year old woman as an attempt to procreate.
I'm glad you are against developing the technology to allow same-sex couples to procreate, but would you support a law that made it illegal for couples even if they are not against it? Do you support the egg and sperm law?
Probably. I'd have to read the details and hear the arguments for and against, but as I said probably.
Once that law is passed, it will not effect a single both-sex couple.
Sure it would in the sense that if a both-sex couple's hopes for procreating relied on the possiblity of conceiving through the manipulation of skin cells, or something like that, we would have been told they are barred from procreating. (Actually I would not say they are barred from procreating, just as I would not say that same-sex couples would be barred from procreating by the law. In both cases I would say that they cannot procreate, except hypothetically by means which are illegal.)
You do appreciate the concept of privacy, don't you?
I do. But people can make things public. Does a couple which volunteers the fact that they cannot procreate strip all couples of their procreation rights. I mean, once we know that the couple cannot procreate through conventional means and their only hope lies in the hypothetical genetic manipulation that has been banned by the famous egg and sperm law, your reasoning says they have been legally barred from procreating.
Am I correct in understanding that the answer to my last question about what method would allow a woman without ovaries to procreate is that some miracle medicine or technology might come along which would give her new ovaries? Could not some similar medicine or technology give a man ovaries and hence the right to procreate even under the egg and sperm law?
A few more questions for you. Can a couple waive their right to procreate? Can we interpret the right to procreate as being the right to procreate by conventional means and not the right to procreate by any means possible or imagined?
Posted by: Galois | April 06, 2005 at 11:16 PM
Galois, regarding counterexamples, it would seem your thought process would overturn just about every law under the sun because of their being over or under-inclusive.
At least you acknowledge now that your examples are very narrow indeed. That ought to caution you in making the over-generalized assertions regarding SSM. It doesn't, but it should.
Provided that the couple consists of a man and a woman, an elderly couple does not contradict the married couples who have grown old together. Likewise with the disabled bride and groom and the couples who become disabled during their marriages. These examples are merely exceptions in appearance.
On the other hand, if people automatically became unmarried on their 70th birthdays, for example, that would undermine marriage. Likewise if particular marriages became undone in the event of a hardship or misfortune that caused sterility. Longevity and caring in sickness and in health are not alien to marriage. Men and women who live in marriage despite old age and despite disabilities do not contradict the procreative model of marriage.
But the combination of two men or two women has been, and remains, alien to marriage. You say this is unfair and should be immediately changed. In the end, your SSM argument amounts to little more than a plea for some form of new domestic partnership status for various types of unmarriagable combinations -- including, but not exclusively, the example of the homosexual twosome.
But when you assert that the example of the elderly and the disabled are just like the entire unisexed combination, you go off the tracks.
The same-sex couple does not become sterile together as a consequence of old age or the misfortunes of ill-health. There are no exceptions, narrow or otherwise. The form of their combination places them outside the procreative model of marriage.
Minus the contingency for offspring, there is little, if any, reason for society to use the government to elevate the marital relationship above other adult relationships or private contracts. That other adult relationships may share some secondary aspects of marriage, does not mean that the man-woman criterion is superfluous.
---
Regarding cousin marriages and the provisions in some jurisdictions that add requirements such as some indication of sterility --
1. Most of the country permits cousin marriages without any additional requirements.
2. Some jurisdictions simply guide couples to genetic counselling.
3. Those that add requirements have dones so on the presumption that marriage as a social institution is procreative.
4. Such requirements also reflect a cautious approach that takes into account the interconnection between marriagability and incest laws.
5. The additional requirements would permit what at the time became thought of as borderline incestuous relationships between mature adults while continuing to maintain a line drawn against incest between younger people.
6. If Galois' thinking were to be the correct interpretation of these additional requirements, then, a 65-year-old father could potentially marry his 40-year-old post-menopausal daughter or niece. All it would take is a Court to declare it unfair to bar that couple while permitting cousins to marry on the same basis.
7. It should be noted that tubal ligation and vasectomy are both reversible with extremely high rates of success. The additional requirements are really symbolic and are not followed-up after the wedding. In fact, I am unaware of any state marriage application that requires family histories beyond the names of mothers and fathers.
8. The states that have these additional requirements had no intention of disconnecting procreation from marriage; they were just making tentative steps toward cousin marriages. If the legislative compromise indicates anything, it is that there were concerns about inheritable diseases. And these may have been overblown.
9. The increasing prevalence of blended families, with step-parents and step-siblings, may prompt some revisions of incest laws and marriagability regulations. Frequently state laws are silent on the potentially incestuous relations that might arise in these scenarios. One should be as cautious in interpreting such silence as one is about the additional requirements on cousin marriages in some states.
Posted by: Chairm | April 07, 2005 at 06:54 AM