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June 26, 2005

Conjugal Marriage

I've recently read the report, The Future of Family Law (pdf), prepared by the Council on Family Law and principal investigator, Dan Cere. This is the report that discussed the competing models of marriage about which I wrote briefly last week. I'll turn to the report itself for a good description of what it is about:

Here is our central thesis: the ongoing disputes in family law are centrally about competing visions of marriage...The competing visions of marriage at the heart of the family law debate are deeply incompatible -- the adoption of one model of marriage moves us in a very different direction than its alternative. [p. 9]

The report refers to these two visions as the "conjugal model," which it claims was "broadly reflected in law and culture until quite recently," and a newly emerging competing vision, the "close relationship model."

Before I explain how the report defines these models, I should note that the choice in names is rather unfortunate. The Future of Family Law can be seen as--and indeed I believe sees itself as--a response to two recent and highly influential reports on family law from the US and Canada respectively, and it makes frequent reference to these reports. The first is a report entitled Principles of the Law of Family Dissolution published in 2002 by the American Law Institute. The second is a report entitled Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships published in 2001 by the Law Commission of Canada. From reading The Future of Family Law I got the distinct impression that the names for the models came from the Canadian report, and that as the title of said report would indicate, the Law Commission of Canada favored replacing the conjugal model of marriage with a new close personal relationship model of marriage. Upon reading the LCC report, however, I discovered that it uses the terms "conjugal relationship" and "close personal relationship" quite differently. The word "conjugal" is simply an adjective form of "marriage" and as such it might seem weird to refer to a "conjugal model" of marriage when marriage is by definition conjugal. Thus it is not surprising that the LCC report doesn't refer to a conjugal model of marriage, but rather conjugal relationships which includes marriage and what in the US we might call common law marriage. Specifically the term "conjugal relationship" is one that has been used by Canadian courts and often incorporated into Canadian laws. Most often they refer to the case, Molodowich v. Penttinent (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) which set out the factors to be considered in determining whether a relationship is or was conjugal. They include:

(1) Shelter: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?;
(2) Sexual and Personal Behavior: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity? (c) What were their feelings towards each other? (d) Did they communicate on a personal level? (e) Did they eat meals together? (f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?;
(3) Services: What was the conduct and habit of the parties in relation to: (a) Preparation of meals, (b) Washing and mending clothes, (c) Shopping , (d) Household maintenance, (e) Any other domestic services?
(4) Social (a) Did they participate together or separately in neighborhood and community activities? (b) What was the relationship and conduct of each of them towards the members of their respective families and how did such families behave towards the parties?
(5) Societal: What was the attitude and conduct of the community towards each of them and as a couple?
(6) Support (economic): (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) Children: What was the attitude and conduct of the parties concerning children?

See for example British Columbia's Family Status Recognition Act which refers to explicitly to Molodowich in setting out the criteria of a "marriage-like relationship":

3. (1) If a court must determine whether a marriage-like relationship exists between people who are not married, regard may be had to
(a) the duration of the relationship,
(b) the nature of the relationship,
(c) the extent to which the financial interests of the parties have been merged,
(d) the extent to which direct and indirect contributions have been made by either party to the other or the mutual well-being of the parties,
(e) the extent to which the parties' are socially and emotionally interdependent,
(f) whether the parties hold each other out as partners, and
(g) whether the parties have together taken responsibility for raising children.

The LCC report notes that in addition to these conjugal relationships (which include same-sex couples) there are other close personal relationships between which are non-conjugal in nature. These include non-conjugal relationships between relatives--like an adult child moving back in with parents, an elderly parent moving in with a married or unmarried child, or two adult siblings living together--and non-conjugal relationships between non-relatives such as close friends and particularly caregivers for the disabled. So when the LCC report talked about moving "beyond conjugality" and "close personal relationships" it was referring not to replacing any model of marriage, but rather to having parliament consider on a law-by-law basis whether to extend laws to cover other non-conjugal relationships which are clearly not marriage. Note that even before the report, same-sex conjugal relationships and cohabiting couples were already generally treated as marriage by the various provincial and federal family relation acts.

In any case, as I said before, Cere's report uses "conjugal model" in a very different sense. Whereas the LCC report would follow Canadian law in considering cohabitation and gay and lesbian relationships to be conjugal in nature, it is clear that Cere does not. So let us examine what he means by the "conjugal model." He describes this vision of marriage as follows:

Marriage in this view is a sexual union of husband and wife, who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have. In essence, conjugality refers to the sex-bridging, procreative dimension of marriage. [p. 12]

That first sentence is one that I can endorse. It is similar to what I called the "promise of permanence" model" where I quoted Waite and Gallagher:

Marriage is, above all, seen as a permanent union ("until death do us part"), which includes the promise of sexual union ("forsaking all others"), of financial union ("with all my worldly goods I do thee endow"), and of mutual support ("to love, honor, and cherish").

It is also similar to how the Statement of Principles of the Marriage Movement described marriage in 2000:

What is Marriage? Six Dimensions.

Marriage has at least six important dimensions:

Marriage is a legal contract. Marriage creates formal and legal obligations and rights between spouses. Public recognition of, and protection for, this marriage contract, whether in tax or divorce law, helps married couples succeed in creating a permanent bond.

Marriage is a financial partnership. In marriage, "my money" typically becomes "our money," and this sharing of property creates its own kind of intimacy and mutuality that is difficult to achieve outside a legal marriage. Only lovers who make this legal vow typically acquire the confidence that allows them to share their bank accounts as well as their bed.

Marriage is a sacred promise. Even people who are not part of any organized religion usually see marriage as a sacred union, with profound spiritual implications. "Whether it is the deep metaphors of covenant as in Judaism, Islam and Reformed Protestantism; sacrament as in Roman Catholicism or Eastern Orthodoxy; the yin and yang of Confucianism; the quasi-sacramentalism of Hinduism; or the mysticism often associated with allegedly modern romantic love," Don Browning writes, "humans tend to find values in marriage that call them beyond the mundane and everyday." Religious faith helps to deepen the meaning of marriage and provides a unique fountainhead of inspiration and support when troubles arise.

Marriage is a sexual union. Marriage elevates sexual desire into a permanent sign of love, turning two lovers into "one flesh." Marriage indicates not only a private but a public understanding that two people have withdrawn themselves from the sexual marketplace. This public vow of fidelity also makes men and women more likely to be faithful. Research shows, for example, that cohabiting men are four times more likely to cheat than husbands, and cohabiting women are eight times more likely to cheat than spouses.

Marriage is a personal bond. Marriage is the ultimate avowal of caring, committed, and collaborative love. Marriage incorporates our desire to know and be known by another human being; it represents our dearest hopes that love is not a temporary condition, that we are not condemned to drift in and out of shifting relationships forever.

Marriage is a family-making bond. Marriage takes two biological strangers and turns them into each other's next-of-kin. As a procreative bond, marriage also includes a commitment to care for any children produced by the married couple. It reinforces fathers' (and fathers' kin's) obligations to acknowledge children as part of the family system.

[It should be noted that the Marriage Movement's website is maintained by the Institute for American Values, one of the chief sponsors of the Council on Family Law and copyright holder of The Future of Family Law report. Furthermore a number of signatories to the Statement of Principles also served on the Council on Family Law.]

Cere's second sentence, about the conjugal view being in essence the procreative dimension, doesn't seem to follow from the first and it certainly doesn't seem to agree with the Statement of Principles of the Marriage Movement. There the procreative aspect of marriage was but one part of one of the six important dimensions of marriage. I believe the Marriage Movement's model of marriage more accurately summarizes the way marriage has been reflected in law and culture and better describes the importance of marriage to our society.

If we examine why Cere believes the conjugal model of marriage is so important we might actually be more inclined to support same-sex marriage. According to The Future of Family Law:

Conjugal marriage has several characteristics. First, it is inherently normative. Conjugal marriage cannot celebrate an infinite array of sexual or intimate choices as equally desirable or valid. Instead, its very purpose lies in channeling the erotic and interpersonal impulses between men and women in a particular direction: one in which men and women commit to each other and to the children that their sexual unions commonly (and even at times unexpectedly) produce. [p. 12]

One of the main reasons many people support permitting same-sex couples to marry is this normative aspect--see for example, Rauch or Carpenter. For gays and lesbians the erotic and interpersonal impulses are not between men and women, but rather between people of the same sex. These too should be channeled in a direction where they commit to each other and to children they may have. And, of course, children are not the only reason for channeling sexual impulses. One obvious reason is the public health benefit of reducing sexually transmitted infections. The Statement of Principles, borrowing on the work of Waite and Gallagher and others, gives us more:

Unmarried hospital patients are two-and-a-half times as likely to require nursing home care, even after taking into account the severity of illness, the diagnosis, age, gender, and race. Elderly married men and women are also less likely than unmarried senior citizens to enter a nursing home.

Married adults live longer, healthier, happier, and more affluent lives than adults who don't marry or don't stay married. This phenomenon is not simply an artifact of selection; marriage itself makes adults better off, by offering them greater emotional and financial support, wider and more integrated social networks, important economies of scale, and productive boosts in earnings, parenting capacity, and life management.

Marriage also helps to conserve wealth and expand social capital. At any given level of income, married adults are less likely to experience financial hardship. The longer people stay married, the more wealth they accumulate, whereas length of cohabitation has no relationship to wealth accumulation. Informal partners-who are not held by the wider society to be financially responsible to one another-do not reap the same benefits as the legally married.

When it comes to helping Americans to live a long, healthy life, marriage offers profound advantages as well. As one review of the literature put it: "Compared to married people, the non-married . . . have higher rates of mortality than the married: about 50 percent higher among women and 250 percent higher among men." Marriage lowers the incidence of depression, suicide, and substance abuse (including alcoholism). One longitudinal study following a nationally representative sample of 13,000 men and women over five years found that, after controlling for initial mental health status, the mental health of all singles (never married, separated, divorced, and widowed) declined compared to those who remained married over the entire period.

Thus adults as well as children suffer long-lasting disadvantages when they live in communities where healthy marriage is not the norm.

Not only are there direct reasons why the norm of marriage should be extended to gay and lesbian couples, but there are also several reasons to believe that by not permitting them to marry we will weaken marriage's normative value for straight couples as well. As Jonathan Rauch explained in an article in Reason:

At long last, gay marriage provides an opportunity to climb back up the slippery slope by reaffirming marriage's status as a norm—not just as a right but as a rite, the gold standard for committed relationships. Gay marriage dramatically affirms that love, sex, and marriage go together—that if you really care, you marry. No exclusions, no excuses

So gay marriage entails potential social benefits as well as potential risks, even apart from the unquestioned benefits for gay couples. And there is a further element, as important as it is overlooked. Banning gay marriage entails its own risks to marriage. And those are not small risks.

Because society has an interest in seeing same-sex couples settle down and look after one another, and because gay couples' friends and family care about their well-being, committed gay couples are winning increasing social support. One way or another, legal support will follow. Banning gay marriage guarantees that the country will busy itself creating gay-inclusive alternatives to marriage (which will be tempting to heterosexuals) and bestowing legal rights and social recognition on cohabitation (which is open to heterosexuals by definition). The result will be to diminish marriage's special status among a plethora of "lifestyle alternatives"—the last thing marriage needs.

Moreover, the gay exclusion risks marginalizing marriage by tainting it as discriminatory. A March Los Angeles Times poll finds that more than 80 percent of young people (ages 18 to 29) favor anti-discrimination protections for gay people. More than 70 percent believe gays should receive the same kinds of civil-rights protections that are afforded to racial minorities and women. More than half favor gay adoption, three-fourths believe that "a gay person can be a good role model for a child," and more than 70 percent can "accept two men or two women living together like a married couple." Seventy percent describe themselves as sympathetic to the gay community (versus 43 percent of people 65 and older). And three-fourths support gay marriage or civil unions—with the plurality favoring marriage.

In other words, America's young are much more hostile to discrimination than to gays or gay marriage. They will increasingly view straights-only marriage the way their parents have come to view men-only clubs: as marginal, anachronistic, even ridiculous. This is not conjecture; it is already beginning. San Francisco regarded its decision to marry gay couples as a protest against discrimination, and Benton County, Ore., recently stopped issuing marriage licenses altogether, on the grounds that it wanted no part of a discriminatory institution.

Note that this makes sense if the norm of marriage is to channel sexual impulses into what is hoped is permanent monogamous relationships with an obligation to care for each other and the couple's children. The fact that same-sex couples will not procreate sexually does not weaken this norm, for it emphasizes that ALL sexual unions should be tied to marriage. Thus it does not "celebrate an infinite array of sexual or intimate choices as equally desirable or valid." It celebrates the choice of marriage (and the obligations and expectations it entails) as being more desirable than cohabitation or some new alternative to marriage. If, however, the goal were to channel all people, gays and lesbians included, into heterosexual relationships, then the prohibition on same-sex marriage would make more sense. This norm, though, should not be confused with the last. The former was a norm of how to structure one's sexual relationships, the latter is a norm about with whom to have such relationships. If anyone wished to argue that the government should try to steer gays and lesbians into heterosexual relationships, they should expressly make that argument and not confuse it with the argument that marriage should by preferred over cohabitation or other structural alternatives.

The Future of Family Law also claims:

Another characteristic of conjugal marriage is that it is fundamentally child-centered, focused beyond the couple towards the next generation.

Of course another reason many people support same-sex marriage is because it would greatly benefit the children of same-sex couples. As usual, the report does not try to explain why marriage would not benefit those children. Instead it emphasizes research (pdf) showing that children growing up with married biological parents generally do better than those growing up with stepparents. Although there is some concern with taking these conclusions and applying them to same-sex parents who adopt, there is a much greater problem here. Just as the discussion on the normative value of marriage seemed to mix up the structure of the relationship with choice of partner in that relationship, I believe this discussion on children also mixes up the two different issues. Family structure matters for children and marriage is the best structure. (I will explain in the next post why the research relied upon by Cere's report, in fact, gives us reasons to believe marriage would be the best structure for same-sex parents as well.) Certainly who the parents are will also make quite a difference in how a child is raised. But again that is a different issue, and those that wish to argue that same-sex couples should not adopt should be clear about their intention and not confuse it with the argument that marriage is better for raising children than cohabitation, or the argument that divorce has an adverse impact on children.

Now that we have looked at the conjugal model of marriage, let us examine how the report described the competing vision, the close relationship model:

In this new view, marriage is seen primarily as a private relationship between two people, the primary purpose of which is to satisfy the adults who enter it. Marriage is about the couple. If children arise from the union, that may be nice, but marriage and children are not really connected. [p. 14]

At that point a footnote references to North American cases ruling that the government must permit same-sex couples to marry, Halpern v. Canada and Goodridge v. Dept Public Health. As noted by Maggie Gallagher last week, Judge Parrillo's concurring opinion in Lewis v. Harris seized upon this idea as he wrote:

No doubt, plaintiffs have taken their bearings from the "close personal relationship" model of marriage espoused in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Citing "respect for individual autonomy," id. at 949, the Goodridge plurality defined marriage simply as "the exclusive and permanent commitment of the married partners to one another[]," id. at 961; "the voluntary union of two persons as spouses, to the exclusion of all others[]," id. at 969; and "at once a deeply personal commitment to another human being and a highly public celebration of ideals of mutuality, companionship, intimacy, fidelity, and family." Id. at 954.

Of course that is not all the court in Goodridge said about marriage, and those statements themselves are not so controversial. The description of marriage in the Statement of Principles makes similar claims about marriage. And the court clearly did not discount the fundamental importance of marriage for the welfare of children. It repeatedly emphasized that plaintiffs were seeking to secure the legal protections and benefits of marriage for their children. The opinion also stated:

Where a married couple has children, their children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth's strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, the fact remains that marital children reap a measure of family stability and economic security based on their parents' legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one's parentage.
***
Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of "a stable family structure in which children will be reared, educated, and socialized."

No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature's conclusion that marriage "is the foremost setting for the education and socialization of children" precisely because it "encourages parents to remain committed to each other and to their children as they grow."

Likewise Halpern never denied the importance of marriage for raising children, it just noted that same-sex couples also raise children so this fact was not a reason to make marriage exclusively heterosexual:

We fail to see how the encouragement of procreation and childrearing is a pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution. Heterosexual married couples will not stop having or raising children because same-sex couples are permitted to marry. Moreover, an increasing percentage of children are being born to and raised by same-sex couples.

In ruling that same-sex couples could form conjugal relationships the Supreme Court of Canada relied on the factors of Molodowich. While it is true that in that decision children is listed as merely one of seven factors that make a relationship "marital", we should note that the Statement of Principles lists children as one aspect of one out of six dimensions. That's not that different. And this view of marriage in Molodowich (from 1980) seems to predate the "close relationship theory" which Cere describes as emerging in the 1980's (with its first major journal starting in 1984). It seems to me there has always been an understanding that children are an important aspect of marriage, just not the only important aspect of marriage. The model of marriage advocated in Canada and Massachusetts continues this idea that marriage and children are connected, in particular marriage is quite valuable for children, but that marriage is not solely about children.

The biggest problem with Cere's report, which I have alluded to above, is that it conflates multiple issues. It constantly groups unmarried opposite-sex couples together with same-sex couples and It assumes that same-sex marriage must necessarily be "couple-centered." For example the report states:

The problem with close relationship theory is that it is fine-tuned to discover exactly what it predicts, namely, that unmarried same-sex and opposite-sex couples reveal the same patterns of interpersonal intimacy evident in married couples. [p. 20]

Overall, though, the argument that cohabiters have a general right to be treated as married has made relatively little headway in the United States, except in the case of same-sex couples who can legally marry in Massachusetts. [p. 22]

The distinct dichotomies that should be seen in views of family law are best seen when the report looks at four possible outcomes in family law from the different models of marriage. The first is the equivalence between cohabitation and marriage:

The first direction that family law might take is to reduce the distinctions between marriage and cohabitation by treating more and more cohabiting couples as if they were married. [p. 21]

Here the dichotomy could best be said to be between a "functional model" of marriage and a "rite based model" of marriage. In the former whether a relationship is treated like a marriage is determined on a case-by-case basis with flexible factors asking whether it "functions" like a marriage. In the latter a relationship is treated as a marriage if and only if the couple went through the proper ceremony. It is essentially the same argument as to whether common law marriages should be recognized. On this point, the report is at its strongest. The ALI report and the LCC report both advocate moving in the direction of the "functional model" (although in Canada the approach is at least 25 years old) and Cere responds with many valid and strong criticisms backed by research showing that cohabitation does not do the same thing as marriage. As he notes:

There are at least two serious problems with the equivalence approach. First, it runs roughshod over the long-established principle that marriage requires consent. Cohabiters are now to be locked by government into a marital regime whether they like it or not. [p. 24]

The second problem with the equivalence approach is that social science evidence by and large fails to support its central contention, which is that marriage is just a formality. Instead, the differences between marital and cohabiting relationships appear to be real and significant, at least in the United States, where most of the research has been conducted. [p. 25]

The "equivalence" regime is unjust because it treats couples who are unwilling to make a marriage commitment as if they have done so. It is unwise because the law communicates to younger people the demonstrably false idea that marital status makes no difference for the well-being of a couple or their children. [p. 25]

The last two statements demonstrate part of the problem in lumping same-sex couples in with cohabiters. They are willing to make a marriage commitment and thus it would be unjust to treat them as if they had not done so. It would be unwise because in arguing against same-sex couples being able to marry when they are raising children, the state is forced to argue that marital status makes no difference for the well being of the couple or their children. Finally we note that when states refuse to allow same-sex couples to marry it leads states, local governments, and private corporations and unions to develop "domestic partnership" registries or other alternatives that get treated like marriage. Marriage maintains its heterosexual status, but at the cost of its normative status.

The second possible outcome discussed is redefining marriage as couple-centered. What Cere really means is redefining it as gender neutral, but he believes this is inherently couple-centered and the opposite-sex requirement is absolutely necessary for the "child-centered" view to hold. If you don't buy that equivalence ("same-sex permitted=couple-centered" "opposite-sex exclusive=child-centered) this whole section of the report makes no sense. For his entire concern is that those who hold the "conjugal view" will be seen as discriminatory:

In classrooms and courtrooms today, proponents of the couple-centered conception of marriage are arguing that the commonly held view of marriage as a conjugal union of man and woman is a prejudice analogous to racism. [p. 26]

This strong language suggests that the legal creation of a couple-centered understanding of marriage is achieved by placing the older conjugal meaning of marriage under a moral and legal cloud of suspicion. It will place the law in a stance that is hostile towards cultural and religious communities that adhere to the ethos of conjugal
marriage as the backbone of their communal life. [p. 27]

Of course none of the judges in the same-sex marriage cases are arguing that a child-centered view of marriage is discriminatory or the idea that marriage is crucial for children is discriminatory. They just fail to see how restricting marriage to a man-woman union does anything to help the children of opposite-sex couples and it seems to hurt the children of same-sex couples, precisely because marriage is so important for children. Of course, this concern is one advantage of having the legislature initiate same-sex marriage while emphasizing the great value it would have for children. The government would not be making a statement about the legitimacy of views that people should only marry someone of the opposite-sex, or that children do better in such marriages. Just as the current laws which allow interfaith couples to marry do not mean that those who think such marriages are a bad idea, and those who worry about the children of such marriages are discriminatory.

The third possibility the report mentions is the disestablishment of marriage and state. That is the state would get rid of civil marriage and only have some form of registered relationships. While the LCC report considered and rejected this view, I did get the impression that it did so only because it knew such a view would be unpopular and that the report's authors might have actually favored disestablishment. After spending paragraphs speaking of the advantages of disestablishment the LCC report merely states:

While there are many principled advantages to this model, it is not likely an option that would appear very attractive to a majority of Canadians. Replacing marriage with a system of registration undermines choice in the regulation of close personal relationships. Removing marriage as a choice for conjugal couples prevents them from continuing to use a legal mechanism that many regard as fundamental to their commitment. While further debate about the appropriate role of the state in marriage, including the possibility of removing the state from the marriage business, is worthwhile, we do not believe that this is a viable reform option at this time.

In any case, Cere does a nice job in discussing the problems with this view (one favored by a few on the left and right), but this view is certainly not dependent on the same views that lead one to support same-sex marriage.

Finally The Future of Family Law asks the slippery slope question "Why Two?":

Critics of legalizing same-sex marriage have occasionally argued that once gender is removed from the definition of marriage, there will be little rationale to limit the number of people in a marriage. This “slippery slope” argument is usually derided by advocates of same-sex marriage as being made in bad faith. What most people do not know is that the argument for the legal recognition of polyamory is more likely today to be raised in legal circles by leading proponents of close relationship theory, not critics of same-sex marriage.

But as we have seen the arguments in favor of same-sex marriage do not depend on this idea of recognizing any "close relationship." This amounts to little more than some people who support same-sex marriage also support polyamory. The fact is, fidelity and monogamy or key to the view of marriage as, say, expressed in the Statement of Principles.

The idea that support for same-sex marriage is dependent on a view that marriage doesn't matter or family structure doesn't matter is quite surprising coming from so many supporters of the Marriage Movement. They should know that the issue of cohabitation vs. marriage and the issue of heterosexual exclusive marriage vs. gender neutral marriage are distinct. In December 2004 the Marriage Movement released another statement reemphasizing the importance of marriage to society. In it they realized that same-sex marriage had become a hot button issue, and they noted:

The second legal challenge is today’s great debate over whether or not to permit same-sex couples legally to marry. At issue is whether it is possible, and in what ways it could be possible, to reconcile two important social values — one value being the importance of equal dignity and treatment for all citizens, and the other being the importance of marriage as a vital, pro-child social institution. From the perspective of marriage and the marriage movement, the current controversy over equal marriage rights for same-sex couples is the most important social policy debate of our generation. It is also an issue on which we in the marriage movement currently hold divergent views.

Goal Five. We will work with each other, and our fellow citizens, to create forums for thoughtful examination of the various possible legal and public policy solutions to the issue of same-sex unions, evaluating each proposed solution according to whether it would be likely to bring us closer toward or take us further away from our mission.

Endnote 10. Our mission statement is not intended to endorse or reject particular public policy proposals regarding same-sex unions. Instead, we seek here to express as clearly as possible the broad social change goal to which we in the marriage movement are committed. How best to achieve that goal when it comes to public policies for same-sex unions poses issues on which people of goodwill can disagree, on which we in the marriage movement currently hold diverse views, and about which we believe that we, and the nation as a whole, should have civil and serious discussion.

I'm not suggesting that Cere or the Council on Family Law not report on its concerns with legalizing same-sex marriage, but I think it would have been better if had been done separately from a report on their concerns with the trend towards the equivalence of cohabitation and marriage. It would have made their positions on each issue more clear.

This ends a rather lengthy post. As promised, my next post will be about why one should expect the structure of marriage to be better for same-sex couples raising children. Finally--but certainly after a week off next week--I will address the second part of the report on The Future of Family Law which focused on "Parenthood: The Next Legal Frontier."

[Thanks to Ampersand for bringing to my attention The Statement of Principles of the Marriage Movement]

05:08 AM in What Is Marriage? | Permalink

Comments

>the state is forced to argue that marital status makes no difference for the well being of the couple or their children.

But you are ahead of yourself, treating same-sex and opposite sex couples as if they were the same, as though any statement the state makes about marriage would apply to both types of couples. That's just silly. The state doesn't treat them the same because they aren't the same. One is bad, one is good. If the state allowed gay marriage, THEN it would be saying that marital status made no difference (because they won't require it.). Rather, the state is saying that marriage indeed makes a difference, it would be bad for adults, bad for the children and society. But if the couple is comprised of both sexes, then it is good that they get married, and indeed many states require it if they plan on having a sexual relationship.

>The fact that same-sex couples will not procreate sexually does not weaken this norm, for it emphasizes that ALL sexual unions should be tied to marriage.

Now, how could you write that same-sex couples will not procreate sexually, when you also have insisted on a right for same-sex couples to use technology, once it is safe, to have children? That's just plain dishonest of you. Is the word "sexually" supposed to give you an out, because you were only talking about them procreating through what they do in bed? If one of your demands is that gay couples have the right to have children with technology once it is safe, and it certainly is one of your demands, then you should not pretend that it isn't in other posts.

And same-sex couples aren't really "sexually" doing anything, in order for the sex organs to function sexually, the other sex organ has to be involved. Otherwise, it is not sexual itself, but only evoking sex and perhaps confusedly causing mental reactions that are often associated with sex, but not at all the same.

Posted by: Mr. John Howard | June 27, 2005 at 12:31 PM

John brings up an interesting point that i've been trying to resolve for some time. "Sex" can take place in the bedroom, between a man and a woman, and it may take place in a petri dish, between an egg and a sperm. But when a man and a woman are in the bedroom, using a condom, is that really "sex"? Or is it just mutual masturbation -- good old fashioned fornication?

Or, if i masturbate alone, am i having "sex"? If i do it with a partner, does that change the definition? Only if having a partner actually changes the definition, i suspect...

Posted by: Marty | June 27, 2005 at 06:17 PM

Gabriel, do you realize this posting is almost 6,000 words? It is 5,878 according to the MS Word counter.

I'm sure it's interesting and all, but I'm afraid I'm just never going to read the whole thing. There's a lot of other good stuff out there to read, and I'm not a teenager with unlimited time on my hands, you know?

Please edit.

Posted by: Joel | August 03, 2005 at 03:33 PM

Just read most of that post. It displays a lot of hubris that dodgins the distinction between conjugal and non-conjugal. That some lawyers have had their turn at it does not mean it makes much sense to follow their lead. Marriage is conjugal but not all conjugal relationships are a form of marriage. Homosex pairs might engage in sex play, or a simulation of mating, but they can not mate together. Such pairs do not form a conjugal relationship, union, whatsoever.

Posted by: JohnLuke | August 13, 2005 at 04:04 PM

Will someone -- anyone who knows him personally -- check on our host and report back here? I hate it when friends go missing....

Posted by: Marty | August 23, 2005 at 09:18 PM

I'm OK, just incredibly busy this summer. I'll try to post again in a few weeks. Thanks for asking.

Posted by: Galois | August 24, 2005 at 09:58 PM