Galois

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]

 

Models of Marriage

At MarriageDebate.com, Maggie Gallagher notes a significant development from the Lewis decision, especially from Judge Parrillo's concurrence.  The opinion cites work of Dan Cere to the effect that there are competing models of marriage out there.  The Massachusetts court in Goodridge espoused the "close personal relationship" model of marriage which the New Jersey court rejected in favor of what I guess is the "procreative" model of marriage.  I'm trying to figure out what model of marriage I would espouse.  My views on marriage are pretty well summed up by Maggie Gallagher and Linda Waite when they wrote in The Case for Marriage:

Despite changing attitudes toward sex and gender roles, the substance of the marriage vow as Americans understand it has changed surprising little.  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").
Each part of this public vow is part of the punch marriage packs, the secret to its power to change lives.  But if one part of this package is more important than the others, it is probably the promise of permanence.

The promise of permanence is key to marriage's transformative power. People who expect to be part of a couple for their entire lives--unless something awful happens--organize their lives differently from people who are less certain their relationship will last.  The marriage contract, because it is long-term, encourages husbands and wives to make decisions jointly and to function as part of a team.  Each spouse expects to be able to count on the other to be there and to fulfill his or her responsibilities.  This expectation of  a long-term working relationship between husband and wife leads to substantial changes in their behavior, of which the most important is, perhaps, what economists call specialization.

I believe that model of marriage, the "promise of permanence" model can and should be applied homosexual couples as well as heterosexual couples.  I don't believe that marriage is essentially a procreative union, although of course many married couples will procreate and marriage is the optimal setting for procreation because of how it transforms the relationship.

You Could Also Say That About Other Couples

On this site I have tried to explain in detail my views on same-sex marriage.  Among other reasons I have given for my support, and upon which I have elaborated over the course of countless posts, are that I find the use of gender classifications unwarranted and problematic, I think that marriage would greatly benefit children of same-sex couples, and it would help society and the families involved by promoting and protecting stable and secure relationships.  Here and elsewhere I have heard these arguments brushed aside by the remark that they are "just as applicable to other family arrangements that are also denied a right to marriage".  This is a strange sidestep.  For it says nothing about the arguments themselves, for example whether allowing same-sex couples to marry would indeed promote stable and secure relationships or whether that would be a good thing.  Instead it merely asserts that the arguments could also be used in favor of allowing other couples to marry who are now currently prohibited.  If this were true, then we would have arguments in favor of allowing those couples to marry.  Presumably those making this claim, though, find something problematic in allowing these other couples to marry. So even though there are arguments in favor of allowing them to marry, there must also be arguments against allowing them to marry which outweigh these.  Now perhaps there are also arguments against allowing same-sex couples to marry that would outweigh these as well.  But then those arguments should be presented and weighed against these arguments in favor.  Simply saying these arguments could be used elsewhere does nothing to deny that they are arguments in favor of allowing same-sex couples to marry.

That being said, are these arguments really "just as applicable" to other couples?  Well let's examine each in turn.

No other couple is being denied the ability to marry based on gender classifications.  So that argument can't be directly applied to other couples.  The claim must be that a different equal protection argument could be made.  What is the classification involved in those cases?  Preexisting familial relationships. Now it seems strange to argue that we should be just as skeptical of this type of classification as we are of gender classifications.  Hence many state constitutions have provisions like Massachusetts:

Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

It would be especially strange here, though, when those making this claim (that the state should be skeptical of classifying based on familial relationships) would then turn around and ask the court to recognize their familial relationships.

What about children?  We are reminded that a parent and grandparent might also be raising a child together.  Is that comparable to the case of two parents who adopted a child together?  Of course not.  In the former case there is one parent and the other person already has a formal relation to the child, grandparent.  It is the parent who has primary and ultimate responsibility for the child. This is not the case with the child with two parents who have an equal responsibility to the child and must decide together what is best for their family.  But I have also argued the benefit marriage would provide for a child in the situation of a parent and stepparent.  Is the grandparent at least comparable to a stepparent?  While this comparison is certainly more apt than the comparison to a parent, there are still some differences that are quite relevant here.  Consider the case of a single parent who finds someone with whom he she becomes seriously involved to the point of them living together.  That relationship could certainly impact the child, and I would venture it would be better for the child for the newly formed family to be stable and permanent.  They should all be able to live with the expectation that the relationship will last and that the stepparent is not just a temporary visitor in the child's life.  This would be better for the child than a steady stream of boyfriends or girlfriends moving in and moving out.  Do we have the same situation with a grandparent? No. For one thing there won't be a steady stream of grandparents moving in and moving out.  Secondly the relationship between the parent and grandparent (his or her parent) is already a well established and secure relationship.  Even if they reach a point where the grandparent no longer lives with the family, he or she is still likely to be a part of the child's life.  I would say that it would be a very bad idea if we made the relationship between grandparent and child dependent on the the parent and grandparent forming a new exclusive bond.

What about the notion of stable and secure relationships?  Do we want relationships between family member to be stable and secure?  Of course, but we don't need marriage for that and the idea it is necessary could make other family relationships less stable and secure. The key difference is that marriage makes new family.  Close family members already have relationships with legal and cultural implications that are formed generally from birth.  When a couple marries it is part of the process of two people who came to know, love, and trust each other making a commitment to become a family and take on these new obligations to care for each other.  The key to this is the promise of permanence.  As Maggie Gallagher and Linda Waite write in their book, The Case for Marriage, write:

The promise of permanence is key to marriage's transformative power. People who expect to be part of a couple for their entire lives--unless something awful happens--organize their lives differently from people who are less certain their relationship will last.  The marriage contract, because it is long-term, encourages husbands and wives to make decisions jointly and to function as part of a team.  Each spouse expects to be able to count on the other to be there and to fulfill his or her responsibilities.  This expectation of  a long-term working relationship between husband and wife leads to substantial changes in their behavior, of which the most important is, perhaps, what economists call specialization.

But relationships with other family members (parent-child or sibling) are already expected to be permanent.  They know from day one that it is expected to be permanent and don't need to undergo this transformation at some later point.  (And the idea that they do, could weaken the security of existing relationships).  Nor are such relationships based on the same emotional connection as marriage.  Again as Gallagher and Waite write:

To be successful, marriage needs to meet some of the emotional needs of the partners.  Individuals may have many emotionally fulfilling relationships--with children, with parents, with their siblings, or with friends.  But the emotional relationship that underlies marriage is fundamentally different from these because of the couple's exclusive sexual bond.

So I don't buy the claim that these arguments apply just as well to other couples who cannot marry, and even if they did that does not make the arguments any less valid.  The more this issue is debated, the more it seems that the promise of permanence is going to be key to the discussions.  Those who support marriage (or at least civil unions) believe that it is also important for many reasons for gay and lesbian relationships to undergo this transformation.  It is the one of the key differences between marriage and cohabitation.  Those that oppose even civil unions generally don't want gay and lesbian relationships to ever take on this promise of permanence.  They view heterosexuality as the ideal that all should strive towards, and for such relationships to undergo this transformation would be to acknowledge their permanent rejection of heterosexual relationships.  To people with such views there is not much that I could say to change things.  They may come to see things differently someday, but it won't be because of what I write, rather it will be because of who they know. 

 

The Conservative Case for Gay Marriage

Last week I addressed some of the moral concerns that commenter Hayleyanne had brought up with regards to same-sex marriage.  At this point I would like to address some interesting comments she had regarding the conservative approach vs. liberal approach to this issue.  She wrote:

Ultimately, I believe, if you remove the religious/moral component, the reason that many people are against SSM boils down to the difference between conservatives and liberals. Conservatives usually favor the status quo and are cautious with respect to fundamental change. Liberals are more willing to make fundamental changes in the name of progressive ideals. We can take good from both sides. It is a natural "push" and "pull back" that we see when any fundamental change is proposed in society.

Conservatives fear that gay marriage threatens the foundation of our society because it will change the traditional family as we know it. Tinkering with the structure that has served so well through our history is risky and may be unwise-- we don't know. On the other hand, the world is changing. Technological change has made it possible for gay couples to produce children through artificial insemination. Surrogate mothers have emerged. Adoption laws have changed to allow some gay couples to adopt. More acceptance of homosexuality has resulted in some people who were in traditional marriages with kids, coming out as gay. The reality is that we are now in a situation where gay couples are indeed raising children. How they got these kids raises some problematic issues for some people. One need only read some of the comments on your blog to see this. They wonder about the biological parent and what happened to him or her. They wonder about whether children need both a male and a female influence in their lives. Etc. I think these concerns are valid.

On the flip side, we cannot ignore that the reality is that we do have gay couples doing the hard work of raising a family and they should have all the same benefits available to a traditional family.

Personally, I think all of these issues need to be discussed openly in our society. How they are presented is very important. For example, as I have said before, through the courts is not the best way to go IMO as it leaves people feeling as if the court is forcing a change.

The issues should be discussed, fleshed out, and ultimately decided in the court of public opinion. People who come off as harshly denying gay couples with kids the benefits of other families-- wind up looking heartless and unkind. I would ask people in this camp how they propose to protect children being raised in a SS household. But people who try to argue that the two types of relationships are interchangeable and refuse to acknowledge fundamental differences come off as pushing an agenda.

Before I could get around to responding to this myself, I came across (thanks to MarriageDebate.com) this interview with Dale Carpenter conducted by Craig Westover.  I think Prof. Carpenter squarely addresses some of these issues and more, and I encourage more people to read the interview.  Carpenter echoes Hayleyanne's sentiments as he said:

I think gay marriage advocates have to do a better job of explaining how gay marriage is a deeply conservative cause. It is a deeply conservative idea. And they have to do that by appealing to our fellow citizens and not by running to courts.

There is something about courts that makes people want to throw tea into the Boston Harbor. It really upsets them. On the other hand, when these changes are made democratically as they were in California, when California basically very broadly adopted this domestic partner idea, or in Connecticut when Connecticut adopted civil unions, there’s something about legislatures and democratic actions that make people accept the results even when they are on the losing end. Accept the legitimacy of the results -- they may not agree with the results -- but they accept the legitimacy of the results even when they don’t win. That’s what we have to do.

This is an issue I plan to discuss further in an upcoming post later this month.  In the meantime, enjoy the whole interview. 

 

Who Needs Marriage?

In the debate over same-sex marriage, some see civil unions as a politically expedient compromise that would offer some protections for gay and lesbian couples and their families without ruffling quite so many feathers.  Others use even the possibility of civil unions as a means to justify withholding from gay and lesbian couples the true protections of marriage.  Of course once they achieve that purpose, their tone about civil unions shifts a bit (pdf).  When he was pushing to pass Measure 36, a constitutional amendment prohibiting the marriage of same-sex couples, Tim Nashif of the Oregon Family Council was quoted in the Bend Bulletin as saying:

Same-sex couples should seek marriage-like rights through another avenue such as civil unions. --8/20/04

Today, when Oregon is considering a civil unions bill, the Oregon Family Council is leading the fight against it and Nashif tells the Bend Bulletin:

We would be against any measure that takes all the benefits of marriage and then calls it something else.  We don't think Oregonians had that in mind when they passed Measure 36. --4/15/2005

Others try to use other's legitimate criticisms of civil unions as a sign of some form of hypocrisy.  We are accused of not really wanting same-sex couples to have the protections of marriage or else we would jump at civil unions.  And when we applaud Connecticut for at least doing something--although not enough--to protect these families that too is questioned, as Elizabeth Marquardt asks

Help me understand how something you passionately and loudly label as “insulting” and “discriminatory” can also be – when you realize it’s all your going to get for now – “a step” towards what you want? If it is truly discriminates against you, you should never tolerate it under any circumstances, isn’t that right?

Well, one could imagine a situation where some citizens were not allowed to ride on public buses.  Then, as many people point out the gross injustice of the situation and demand equal rights this is forestalled by a move to graciously let them ride certain local buses provided they sit in the back. People would be right to label such a move as "insulting" and "discriminatory" while conceding that it was at least "a step" toward gaining what others take for granted.  This policy truly discriminates against them, but wouldn't there be circumstances--say the need to get to a job to provide for one's family--that would cause some to bear the insult and ride the buses while continuing to push for full equality?

One can learn a great deal from the actual alternatives people support once marriage is taken off the table.  In Oregon the Governor and the Senate are supporting a civil unions bill (SB 1073 pdf) along the lines of what's been passed in Vermont and Connecticut.  Republicans who control the House are pushing a reciprocal beneficiary bill (HB 3476 pdf) that would give a few important, but quite limited, protections to same-sex couples and to close relatives that cannot marry.

The RB bill itself repeatedly emphasizes that it is not for same-sex couples in particular, but rather more generally for the many couples who are prohibited from marriage.  As the bill states:

(1) The Legislative Assembly finds that the people of Oregon have chosen to preserve the tradition of marriage as a unique social institution between one man and one woman. As such, marriages are subject to restrictions, such as the prohibition of a marriage under ORS 106.020 between parties who are first cousins or any nearer of kin to each other.
(2) However, the Legislative Assembly acknowledges that many individuals have significant personal, emotional and economic relationships with other individuals, but are prohibited by law from marrying each other. Examples of such individuals include two individuals who are related to each other, such as a widowed mother and her unmarried son, or two unrelated adults of the same gender.
(3) The Legislative Assembly finds that certain rights and obligations should be extended to couples composed of two adults who are legally prohibited from marrying each other.

Yes, there is nothing particularly remarkable about the situation of gays and lesbians who are being denied the protections of marriage.  Many individuals are in a similar situation. For example, there are all those couples who cannot marry because they are too closely related and there's also the example of a widowed mother and her unmarried son.  OK that last one was actually a particular case of the first, and there actually is no other situation of a couple that would fall under this bill other than (a) individuals who are too closely related to marry and (b) same-sex couples. Still it seemed quite important to the bill's authors to make it clear that someone else was in the "same situation" as gay and lesbian couples.  It nicely frames their attempts to link gay marriage to incestuous marriage and their attempts to claim gays and lesbians are asking for "special" rights. 

Supporters of the civil unions bill point out (pdf) that:

The relationships between committed, same-sex couples who want to form a family and, potentially, raise children are fundamentally different from the relationships between two cousins or two elderly aunts who may rely on one another for a limited time. Furthermore, cousins; elderly aunts; and parents and adult children already enjoy a legal relationship to one another that allows them the limited protections afforded by HB 3476. Using the law to treat same-sex couples like elderly aunts is demeaning and ignores the seriousness of these commitments and the needs of these families.

Then again, opponents of the civil union bill might make similar claims about treating homosexual relationships like heterosexual relationships.  Let us put aside for the moment the question of whether a lesbian woman seeking to marry her soulmate is more like a straight woman in that situation or more like a widow moving in with her son.  Instead we can use this opportunity to compare the bills and see the details of how each group, the civil union supporters and opponents, would have the state treat the gay couple differently than the close relatives and the straight couple respectively.

Let us start by looking at perhaps the most significant difference, how the relationship is dissolved.  A reciprocal beneficiary is terminated either by one member simply signing and notarizing a form, or it terminates automatically when one member marries.  Can you imagine if someone proposed changing the marriage laws so that you could end one marriage simply by marrying someone else?  The need to go through and complete comprehensive divorce proceedings before marrying another is a vital protection of marriage, and it's not because of a child's need for his married mother and father (a person could be leaving a marriage with no children to marry the child's other parent, and yet we would still properly require divorce proceedings). This way of terminating the reciprocal beneficiary may be appropriate for the widow and her son.  They knew they were going to be the primary adults in each other lives for a limited time and either one might find someone to marry at any point. If one of them finds that person he or she should be able to marry.  The son doesn't need to end his relationship with his mother, but the new spouse will naturally take primacy in regards to medical decisions and issues of survivorship.  But opponents of the civil union bill feel that dissolution proceedings would be inappropriate for gay and lesbian couples.  They should be able to leave one another at the drop of a hat.  Hardly a recipe for commitment and stability, but then it seems that's not what they want for gay and lesbian couples.  I believe they are hopeful that the relationships will end and wouldn't want anything to prevent one or both of them from "seeing the light" and marrying someone of the opposite sex.   

The two bills also differ significantly on obligations. Well actually there are no obligations in the reciprocal beneficiary bill.  That may work as far as the widow and son are concerned.  Some obligations may be inappropriate for them.  For example, if the son had a minor child, the grandmother would probably care for her grandchild, but why should she be any more legally obligated for the child's educational expenses than any other grandmother?  Oregon, however, recognizes that a married person is responsible for his or her family.

109.053 Responsibility of stepparent for expenses of stepchild.  The expenses of the family and the education of minor children, including stepchildren, are chargeable upon the property of both husband and wife, or either of them.

It's unclear to me why this obligation should be any different if the stepparent is a woman instead of a man. I guess opponents of the civil unions bill don't want to even consider the possibility of a same-sex stepparent.  For one thing, stepparent adoption is generally easier than a second-parent adoption and they don't want to do anything to make it easier for same-sex couples to parent, nor anything that would further the idea that a child could have two mothers or two fathers.  The grandparent relationship and the stepaprent relationship are already described in Oregon law.  Some people would do all they could to avoid reference to the relationships between same-sex couples and their children, though. 

I have no problem with the reciprocal beneficiary bill for relatives who support one another.  Vermont passed a very similar bill (pdf) at the same time they passed civil unions.  I don't know how necessary it is.  I have heard reports that nobody has signed up for reciprocal beneficiary status in Vermont in the five years they've had it.  Still, I don't see how it hurts and perhaps in Oregon there will be some demand for it.  The idea that such a law is appropriate for same-sex couples demonstrates a view that such relationships should be transient and same-sex couples should not be too dependent on one another for support.  It shows absolutely no consideration for the children of same-sex couples and does little to promote the stability and security which would benefit those couples, their children, and the welfare of Oregon. 

 

An Adult Relationship

I'm going to try my best to clarify why I believe the notion spread by some that marriage must be either "child centered" or "an adult relationship" is a false dichotomy.  A few laws of marriage deal with the establishment of the parental relationship, and these laws are certainly extremely important.  Incidentally they are extremely important for the children of same-sex couples as well.  In comments to another post, commenter Pete directed my attention to a Massachusetts case T.F. v. B.L. where a lesbian couple decided to have a baby using D.I. and subsequently broke up.  After a time one of them refused to pay child support, and the court ruled they could not order her to do so.  If, however, they had been married she would have been established as parent and had the obligations to support her child.  We see yet again here part of the importance of getting married before having children.  (Three similar cases are currently before the California Supreme Court).  The article notes:

Lambda Legal says that couples who register as domestic partners will have the benefit of presumed parentage for children born into the relationship. That protection is provided by A.B. 205, California's extensive domestic partnership law, which went into effect in January.

In any case while the establishment of parentage or laws establishing custody in divorce are certainly importants ways that marriage benefits children, they are not the primary way marriage does so.  That is marriage is not primarily about the direct relationship between parent and children.  That relationship should and generally is established and respected even when the parents are not married.  [I should note that marriage used to be much more important in these regards. Marriage used to establish which children had a right to inherit and make claims of support and which did not.  We have moved away from this idea, and most people would now agree that even illegitimate children should be part of the full parent-child relationship].   

I believe marriage is (and should be) primarily about the relationship between the adults.  Overwhelming the laws of marriage deal with governing this relationship and establishing and protecting the direct rights and obligations that spouses have to each other.  A marriage which ends (through death or divorce) before any children were born did not serve no purpose, nor was it insignificant.  A marriage can and should continue to function well after the children are raised (and certainly well after parentage is established).  This adult relationship is important, it does benefit society, and it is rightfully governed by family law.   

Does this mean I don't think marriage is about children?  Of course not.  I have just said that overwhelmingly marriage is concerned directly with the relationship between the spouses as opposed to the relationship between parent and children (which exists independently of marriage).  The crucial point to remember, though, is that the relationship between a child's parents has an enormous impact on the welfare of the child. 

Children generally do better when their parents are married.  This seems obvious to me, but studies certainly back me up.  Why is that?  Is it because a child is then more likely to be raised by his or her biological parents?  Possibly, although I would think adopted children would fare better with married parents.  Is it because a child  of a married couples is more likely to be raised with a father and mother? Possibly, but I doubt this is the main reason marriage is better.  For one children do better with marriage as opposed to cohabitation which would also provide a father and mother.  Children do better with married parents as opposed to divorced parents even if both are involved in the child's life.  Furthermore, studies to date (while necessarily imperfect because of the limited data) support the belief that a child does just as well with same-sex parents. 

So, no, I do not believe that the benefit of marriage to children stems primarily from who the marriage provides, but rather the structure it provides.  Again given the same two parents, I think married parents would provide a better structure for the children than cohabiting parents.  Why should this be the case?  The short answer is because the relationship between the parents makes a big difference to the child.  Part of that is the love parents show to each other, but there is much more.  When the parents have obligations not only to the child, but to each other there is a model that family members have obligations to each other which are serious and enduring.  There is also a sense of security in a child knowing their parents have made a solemn commitment to remain together.  Marriage makes it easier for the adults to fulfill their obligations even in times of difficulty.  This can teach a child on the importance of fulfilling our obligations to each other even through difficult times. 

This is not to mention the more concrete ways that the parents' obligations to each other benefit the child.  They make it easier for one or both of the parents to sacrifice career interests to put the family first.  They make it easier to support each other in times of sickness and other difficulties.  Certainly a child is going to do better when his or her parents are well cared for, and who better to care for them than each other. 

When we talk about marriage as the ideal for raising children, we do not mean that every couple who gets married makes the perfect parents.  Nor do we mean that every couple who gets married is capable of providing everything for their children.  What we mean is that a couple who marries is at least doing all that they can to help their future children, in large part because they are doing all they can to establish a committed relationship to each other.

[Again I won't be posting this weekend because of the holiday.]

Tear Down the Gate

Megan McArdle (aka Jane Galt) has a rather lengthy but interesting post concerning gay marriage.  The post neither comes out in favor of it, nor opposes it, but merely warns against certain types of arguments.  In particular, she first warns against the assumption that because one would not personally react a certain way, nobody would react that way.  As she writes:

However, I am bothered by this specific argument, which I have heard over and over from the people I know who favor gay marriage laws. I mean, literally over and over; when they get into arguments, they just repeat it, again and again. "I will get married even if marriage is expanded to include gay people; I cannot imagine anyone up and deciding not to get married because gay people are getting married; therefore, the whole idea is ridiculous and bigoted."

She gives several examples where this type of argument was made in incorrectly made in the past.  The flaw is that some people in the "marginal case" will react differently due to the change in law.  She notes:

The argument that gay marriage will not change the institution of marriage because you can't imagine it changing your personal reaction is pretty arrogant. It imagines, first of all, that your behavior is a guide for the behavior of everyone else in society, when in fact, as you may have noticed, all sorts of different people react to all sorts of different things in all sorts of different ways, which is why we have to have elections and stuff.

The second thing she warns against is taking advice on how to change an institution from people who realize neither the value nor purpose of the institution.  She sums it up best with a quote from GK Chesterson:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

This leads McArdle's second warning:

And second, the unwavering belief that the only reason that marriage, always and everywhere, is a male-female institution (I exclude rare ritual behaviors), is just some sort of bizarre historical coincidence, and that you know better, needs examining. If you think you know why marriage is male-female, and why that's either outdated because of all the ways in which reproduction has lately changed, or was a bad reason to start with, then you are in a good place to advocate reform. If you think that marriage is just that way because our ancestors were all a bunch of repressed bastards with dark Freudian complexes that made them homophobic bigots, I'm a little leery of letting you muck around with it.

I actually agree with both points above.  So we may ask, what next?  With regards to the first point it is necessary to evaluate specifically how the change to marriage might effect the institution.  It's not enough to simply say it is a change and therefore should not be done.  People have always warned of dire consequences when changes to marriage were considered.  In What Is Marriage For? E.J. Graff  (based on Norma Basch) notes that an 1844 New York legislative committee insisted:

that allowing married women to control their own property would lead "to infidelity in the marriage bed, a high rate of divorce, and increased female criminality," while turning marriage from "it's high and holy purposes" into something arranged for "convenience and sensuality."

And the committee was probably right that women owning property has led to an increase in divorce since they are more likely to have the financial means to support themselves should the marriage end.  Most people would say, though, that it should not be the case that only men have the means necessary to consider divorce.  In any case, it is clearly necessary to examine the means by which a change would effect the institution as well as the motivations for doing so.  As Kip Esqurie noted, none of the examples McArdle gave involved situations of discrimination.  So how does she explain how gay marriage might effect whether others at the margin marry?  She writes:

To which social conservatives reply that institutions have a number of complex ways in which they fulfill their roles, and one of the very important ways in which the institution of marriage perpetuates itself is by creating a romantic vision of oneself in marriage that is intrinsically tied into expressing one's masculinity or femininity in relation to a person of the opposite sex; stepping into an explicitly gendered role. This may not be true of every single marriage, and indeed undoubtedly it is untrue in some cases. But it is true of the culture-wide institution. By changing the explicitly gendered nature of marriage we might be accidentally cutting away something that turns out to be a crucial underpinning.

That is some people might no longer choose to marry as it will no longer be an expression of an explicit gendered role.  I had thought, however, that in such a conflict where one person wants a role to be explicitly gendered and another wishes to take that role in spite of his or her gender, the latter's equality rights would generally trump the other's interest in maintaining gender roles.  If not we should reconsider a lot of issues.  Perhaps women should no longer be allowed to be policemen as some men at the margins are no longer joining the force because it does not afford an opportunity to step into an explicitly gendered role.  In this case it is not that I arrogantly suppose nobody would react this way.  I simply feel the need for explicit gendered roles is far outweighed by the need to be free of them.

As for an answer to why marriage has always been a man-woman institution, I think the above gives a great explanation.  It is not some random coincidence or bizarre rite.  Society has always defined roles as explicitly gendered.  Men and women had different roles, and it was natural and important that marriage consist of a person in each of these distinct roles.  I do not believe it is a coincidence that those groups, especially religious groups, which tend to delineate the most distinct and rigid gender roles also tend to be those most likely to oppose same-sex marriage.   I believe it is necessary to combat the idea of government enforced gender roles, and hence necessary to remove the government endorsement of marriage as defining gender roles.  There is one answer to why the gate exists, and why it must go.  It is not that I don't see the value of marriage.  On the contrary, I agree wholeheartedly with McArdle when she writes:

Marriage Matters. It is better for the kids; it is better for the adults raising those kids; and it is better for the childless people in the communities where those kids and adults live. Marriage reduces poverty, improves kids outcomes in all measurable ways, makes men live longer and both spouses happier. Marriage, it turns out, is an incredibly important institution.

An institution as important as that should definitely not be denied to same-sex couples and their families. 

Encourage, Not Just Permit, Same-Sex Marriage

I have written quite a bit on how prohibiting same-sex marriage constitutes a use of gender classifications that is totally unjustified.  This is one of my main reason for supporting same-sex marriage and based on it alone I would continue to do so.  That basis, however, tends to be a negative one.  I believe same-sex marriage should be allowed because to prohibit it would be unjust.  I also have a more positive basis for supporting same-sex marriage--reasons that lead me to believe it should not only be permitted, but encouraged.

I start with the premise that some people are homosexual.  By a homosexual I mean a person who not only has sexual desire only for a person of the same sex, but also is only capable of an intimate relationship with a person of the same sex.  I further take it as given that "conversion" therapy is not only ineffective, but also dangerous.  I realize that not everybody agrees with these premises, and in another post perhaps I will explain what has led me to these conclusions.  For now, though, I take these as given and the starting point for further discussion.

The question then arises how should homosexuals live their lives.  Some would avoid this question completely and say that is entirely up to them.  I have several reasons, though, for wanting to address the issue.  First of all, a homosexual might ask the question of an individual as a friend, mentor, or religious leader and I am interested in what advice might be given.  Secondly, as a society I believe the answer we find to this question can help inform the policies we set in place.

One possible answer is that a homosexual should marry a person of the opposite sex.  It would be a marriage without sexual desire or intimacy. Nevertheless, a societal duty to marry and have children might outweigh the individual need for an intimate relationship.  This situation is not unprecedented.  In many cultures marriages were arranged.  A couple was expected to marry and have sex regardless of their feelings for one another.  It was hoped that perhaps an intimate relationship and sexual desire would develop, but that was secondary to the obligation to marry in the first place.  I find such a system, though, cruel and counterproductive.  I do not think couples should be getting married in such situations.  Nor do I see such  a marriage as the "ideal" place to raise children.  In the case where a couple loses sexual desire and intimacy, it might be argued that they should nonetheless remain married as other issues such as the obligations they made to their children and to each other outweigh the disadvantages of the situation.  In such a situation it might also be hoped that counseling can help restore at least the intimacy, if not the sexual desire that they once had.  Even if one took the position that such a couple should remain married, though, I see no benefit in encouraging a couple in that situation to get married in the first place.  Thus I reject this solution.

Another possibility is that homosexuals should live lives that are celibate and alone. They could form friendships and would still have contacts with the families in which they were raised, but they should not form an intimate relationship with anyone.  They should not commit their lives to caring for another through good and bad.  Nor should they consider forming a family of their own.  Some people do indeed choose such a life for themselves often for religious reasons.  I do not believe such a life should be encouraged for one who does not choose it, though.  Much of my thinking on this subject is informed by my own religious values.  I believe that is not good for a human to live their life alone in this manner.  I believe family is extremely important.  I also believe there is a better solution and hence I reject this option as well.

I believe that the homosexual as an individual and society in general would be best off if he or she sought an intimate monogamous relationship with someone.  In short, my advice would be to try to find someone to marry.  Settle down.  Raise a family.  I believe the individual would be better off both morally and medically in that situation.  Society would benefit in having couples in happy, stable marriages where there is someone both for whom to care for and by whom to be taken care.  And if same-sex couples are going to take on these obligations it is the duty and interest of society to support them in doing so.  Being married and raising a family is not easy.  Imagine what it would be like if heterosexual couples did not have the laws of marriage to protect and support them in doing this.  Just as we should support heterosexual couples when they take on these obligations, we should support homosexual couples as well.

There are those that would say we should indeed support homosexual couples in this manner, but not through marriage.  Rather we should do it through some new institution like "civil unions".  To such people I ask, how should the laws of this new institution differ from the laws of marriage?  Why?  I personally do not see any reason to have the law depend on the gender of your spouse.  And if we are going to have the same laws, why not have the same institution?

Definitions

Definitions come up frequently and importantly in the debate over same-sex marriage.  Some argue that prohibiting same-sex marriage is not sex discrimination because marriage is by definition between a man and a woman.  It is the definition which excludes same-sex couples and not the government.  In the 1970's a number of courts used such arguments to reject suits seeking SSM.  While this type of curt dismissal has lost quite a bit of credibility in the courts today which note that such logic is circular, it is still quite powerful in the public at large.  In a Pew Forum Poll conducted last November, 16 percent of those opposed to SSM cited the definition of marriage as a man and a woman as their main reason for opposing SSM.  Only moral and/or religious concerns were cited more often.  I often hear how the Massachusetts Supreme Judicial Court had no right to redefine one of our basic social institutions.  When other courts struck down interracial marriage bans it was different because that didn't involve the definition of marriage.  Even the movement to have civil unions instead of SSM is popular with some because they believe it would treat gays equally without changing the definition of marriage.  (Another reason for the appeal of civil unions is that until they are actually passed into law nobody knows exactly what they entail.  So two people can claim to both support civil unions while having very different images of what such civil unions would look like.)  Many opponents of same-sex marriage like to refer to gay "marriage" because they claim such a thing does not actually exist by definition.  Finally I have heard a number of variations on the idea that defining marriage to include same-sex couples would be like defining the word "dog" to include "cat".   

My reaction to these arguments may be shaped by my career as a mathematician wherein definitions play a critical role.  In the May 2004 issue of American Mathematical Monthly, Barbara Edwards and Michael Ward had a fascinating article discussing mathematical definitions and their findings regarding student misuse of them.  Borrowing on the ideas of philosopher Richard Robinson and lexicographer Sidney Landau, they refer to two different categories of definitions: (internal citations omitted)

[Robinson] distinguishes between lexical and stipulative definitions.  Robinson writes "Lexical definition is that sort of word-thing definition in which we are explaining the actual way in which some actual word has been used by some actual person".  [Landau] discusses the same category, but uses the term extracted definitions in place of lexical definitions because they are "definitions that are based on examples of actual usage, definitions extracted from a body of evidence."....By contrast, Robinson uses stipulative definition to "mean the explicit and self-conscious setting up of the meaning-relation between some word and some object, the act of assigning an object to a name (or a name to an object)"....Thus, extracted definitions report usage, while stipulated definitions create usage, indeed create concepts by decree.

Mathematical definitions are generally of the stipulated variety.  When defining a mathematical term the mathematician will often have to make decisions about whether or not to include certain properties.  In doing so the goal is not to arrive at a certain Truth, but rather to figure out which definition will be most useful in communicating certain concepts.  Those concerns may lead one mathematician to define a term one way and another to define the same term differently.  In fact, the same mathematician might even use a term in different ways in different papers or talks provided it is clear to the audience how the term is being used in that context.  For example, you might hear at a talk, "When I say ring, I shall always mean that it contains a unit element," even though this property is often not necessary for something to be considered a ring.  Of course the mathematician must take into account how a term has been previously used (especially in the same subject area) and weigh the benefits of any changes against possible confusion the altered definition might cause when communicating, but the definitions are still imposed rather than extracted. 

 

It seems to me that when a definition is put into a statute it is also stipulative.  Thus in order to obtain a conviction for robbery, it is not sufficient to show that what a person did would generally be considered robbery by most people, but rather that each element of the crime as defined in the statute occurred.  (I was on a jury once where some of my fellow jurors did not like the fact that I wanted to satisfy myself that each element of the crime was proved.  They thought that once it was determined that the defendant had indeed mugged the victim, we should automatically return a guilty verdict on all counts with which he was charged.)  The legal codes are filled with statements like "As used in this title...`highway' includes streets and roads."  So when I hear the analogy about defining a "dog" to include a "cat", I am undisturbed.  The law does things like that all of the time.  Even the courts will sometimes interpret a word to mean something quite different than it's usual usage.  In 1985 the Supreme Court declared unanimously that Long Island was not legally an island.  (As far as I know no one brought forth a constitutional amendment to defend traditional islands.) 

Maggie Gallagher says that marriage was not and cannot be created merely by law.  Even if that were true, we are concerned with what the legal definition of marriage should be, and that most certainly is created by the law.  I don't believe, however, that her statement is even true.  Unlike dogs, cats, highways, roads, or islands, marriage cannot exist apart from the law.  People can have sex.  They can make promises to one another.  I wouldn't call something marriage, though, unless it's implications were recognized by others, that is unless it were recognized by law.  That, however, is simply a matter of how I would use the word marriage.  What is important here is the stipulative definition of marriage imposed by the law.  Note that even those that discuss the distinction between civil marriages and religious marriages--myself included--are only making a distinction as to which law applies, civil or religious.  In neither case is marriage separate from law. 

I am therefore completely unpersuaded by attempts to avoid certain issues by referring to the definition of marriage.  Same-sex marriage already exists under certain legal codes (like Massachusetts Law), and the debate is whether or not it should exist under other legal codes as well.  That being said, I am sympathetic to those that are reluctant to embrace same-sex marriage because to them that is not what marriage is.  Change is scary, and it will take some time for people to get used to the idea of two people of the same sex being married.  I will, however, continue to push for this change because I think it is unjust to do otherwise and I believe more and more people will come to accept it before too long.

 

Interview with Rauch

A little over a month ago I recommended Jonathan Rauch's book, Gay Marriage : Why It Is Good for Gays, Good for Straights, and Good for America.  Since that time the book has been widely praised.  Even those opposed to SSM have had some kind words for the book.  Via FamilyScholars I see there is an interview with Rauch in the Atlantic Monthly conducted by Sarah Cohen.  If you're not going to read the book, at least read the interview (although you really should read the book).  Rauch makes many of the same points I make (only he says it better and with a wider audience).  As I've noted before, I'm not as enthusiastic about federalism as he is, but I can see his point.  For the most part, though, I agree wiht Rauch that marriage is not only a civil rights issue, but also good family policy.  So here are some instances from the interview where I found myself shaking my head muttering "exactly" as I read.  First in reference to the marriages in San Francisco:

What I think would have been absolutely wrong would have been for Gavin Newsom, the mayor of San Francisco, to say he was going to issue marriage licenses to same-sex couples in defiance of a court order to stop. That would have been a real threat to the rule of law. He did not do that, and, in fact, two courts ruled in three separate rulings that he could continue to issue the licenses. So to that extent he actually had the court's sanction. And then, when the higher courts said "stop," he stopped.

On whether marriage  is a civil rights issue:

I think that gay marriage is a civil-rights issue, but it's not only a civil-rights issue; it's also a family-policy issue and a morals issue. My book discusses some arguments that have to do with civil rights; I do argue it's wrong to say that gays don't matter, that if what's good for them is bad for somebody else, to heck with them. But many people have already covered the civil-rights aspect of this extremely well, so the rest of my book focuses on the social arguments for gay marriage, which I think are very important.

On the role of state judges in this:

State judges absolutely have a role, and that role should be defined by the state constitution and the people of the state. If people don't like what the courts in their states are doing, they can change the constitution, or change their judges. Massachusetts is on its way to putting through a constitutional amendment which would ban same-sex marriage, enact civil unions, and then put this to a vote of the people. A popular referendum in Massachusetts would decide this issue. This is not only not a threat to democracy—it doesn't get any more democratic than this.

On reactions to the book:

Well, one very heartening thing that I often hear is married straight people telling me that this book has greatly deepened their appreciation of marriage. That means a whole lot to me, because to me this is a book not just about gay marriage but about marriage. A lot of people in America have come to think of marriage as just a document from the government and a package of benefits. This book says marriage is something much more than that: it's a promise that the couple makes, not just to each other, but to their community. That's what elaborate weddings are for, and that's why people ask spouses every day, "How's your husband? How's your wife?" and expect them to know. The community has an enormous stake in marriage, and plays an enormous role in investing in a marriage, supporting it, and making it hard to get out of. If someone says, "I'm getting a divorce," their friends and neighbors and family and coworkers don't say, "Bully for you!" They say, "Oh, gosh, that's too bad, I'm sorry." And what they're saying there is, "We had a stake in this too, and divorce is a sad event, sad for all of us." Even if a couple doesn't have kids, divorce still means that two more people are out there on their own, and that means more vulnerability and more insecurity.

On why people are more likely to embrace SSM now:

There's no moment; it's just a realization over the past thirty to forty years that there are some people who are so constituted as to be homosexual. It's the understanding that these people are not misbehaving heterosexuals, that homosexuality is not chosen, that it is not changeable, that it is not pathological, and that some small minority of the population just is this way and poses no threat to anybody else. Of course, today there are still a great many people who don't believe that, but many people now do. Once that's accepted, then gay marriage seems a natural thing, because it's not going to mean that lots of straight people suddenly decide to have same-sex marriages and forgo having children. It just means including gay people in the same social compact that straight people make.

As I said, I encourage you to read the whole interview.  As it is, I worry that I may have quoted too much, but I leave you with one last quote from Rauch in the interview:

We are a better and stronger country when we do our utmost to treat all individuals with respect and to open opportunity to every individual. And we're a stronger country when our civic institutions are universal institutions, when they're defined by what they oblige instead of by whom they exclude. Voting is stronger because women can vote, and marriage will be stronger when gays can marry.