Same-Sex Marriage

by Kieran Healy on October 18, 2005

Over at Volokh, Maggie Gallagher is visiting for a bit and arguing against the legalization of same-sex marriage. At least, soon she will begin arguing against it. Right now, she is clearing some ground to prepare for her main case. It looks like she wants to make some broad sociological generalizations about the place of the institution of marriage in society and the likely effect of a legalization of same-sex marriage on that institution. Essentially, she thinks that the main public purpose of marriage is procreation—this is the reason why it enjoys the legal status it does. In this post, she asserts that marriage (or some functional equivalent) is a cultural universal—the “cultural” qualifier is important because she also thinks marriage is a functional solution to the apparently biological problem of fathers buggering off and abandoning their children:

The argument I am making is this: every society needs to come up with some solution to the fact that the default position for male-female sexual attraction (that is unregulated by law or society) is many children in fatherless homes. The second human reality societies must face is that procreation is not optional, it is necessary. Individuals don’t have to do it but societies do. The word for the social institution that addresses these problems, in this and every known human society is marriage. Sex makes babies, Society needs babies, babies need mothers and fathers.

Some quick responses to the sociological angle below the fold.

First, it is plain that the final step in that last sentence doesn’t follow at all from the first two clauses. And even if it did, the idea that this entails acceptance of the legal institution of marriage as we know it doesn’t follow either. Gallagher seems to equivocate: sometimes “marriage” means, “some institution which functions to produce and raise children more or less reliably”; other times it means “the legal institution of marriage as it now exists in the United States.” And then when it suits, the universality of the former usage is elided into the specificity of the latter.

Second, even granting that marriage-as-we-know-it fulfils the function Gallagher thinks it does, aren’t there many more pressing threats to it? As I’ve argued before, I think that anyone who argues that same-sex marriage threatens to destabilize society needs to explain why something like legal, no-fault divorce (or indeed any widespread form of legal divorce) shouldn’t be banned first. In terms of the numbers of people it affects, legal divorce should contribute much more to the deinstitutionalization of marriage than legal same-sex marriage. Now, if you think the world is going to hell in a handbasket then maybe you already believe this about divorce. But I’d want to know whether and why Gallagher in particular thinks divorce should be legal, if this is her view of the special, indeed universal, nature of the institution of marriage in successful societies. Or to put the point in reverse: aren’t there any number of policies a society might pursue to enhance the integrative/procreative function of marriage (e.g., child care and education policies, for one) before it began to worry about the same-sex issue. Again, I don’t know Gallagher’s views, but if she turns out to be against policies like this it won’t help any presumption of good faith.

Third, Gallagher’s argument from cultural universals is further weakened by her focusing on particular aspects of modern marriage, as opposed to the typical nature of marriage in, say, western history. For example,

On the gender equality issue, here I think there are sharp differences between marriage as the union of husband and wife and bans on interracial marriage (Loving v. Virginia). Marriage plays an integrative function with regard to gender: its a mixed sex institution. Moreover unlike bans on miscegenation (which were formally equal but substantively served to help keep the races separate so that one race can oppress the other), marriage not only formally, but substantively furthers gender equality, by helping reduce the likelihood that women as a class will bear the high and gendered costs of parenting alone.

In the first place, saying that marriage is “a mixed sex institution” just begs the question. This is precisely what’s in question! More importantly, the idea that marriage both formally and substantively enhances gender equality is perhaps true these days (perhaps), but it’s certainly not true of marriage in the western tradition. For most of its history in the western tradition, marriage served to eliminate or at least subordinate the wife’s rights regarding property, sex, children, and much else. Gallagher seems to want it both ways again. On the one hand, say historically marriage has been a mixed-sex institution with the strong presumption that it was about producing children (mainly to safeguard property, but leave that aside). On the other hand, say the institution has been evolving in a more egalitarian direction with the effect of furthering gender equality. But in that case it’s moving away from its old roots, and is being redefined as a special kind of contract between two equals who want to make a lifetime commitment to one another. That’s the sort of thinking that opens the door to SSM. It’s hard to take the egalitarian benefits of modern forms of marriage while jettisioning their wider implications.

I think the basic question Gallagher wants to ask isn’t a bad one. We want to think that there are institutions that really are necessary for societies to function over time. But it’s very hard to be specific about what they are—I mean, in a way that isn’t vacuous (i.e, by giving functional definitions that just restate very general conditions for social continuity), or overly specific (i.e. by giving historical description that reduce to social life as we know and like it). You can have a political fight about whether life as we know and like it is worth preserving by legal means. But that’s not what Gallagher wants. If nothing else, the justice of, e.g., striking down interracial marriage bans or upholding the Married Women’s Property Act is hard to argue against. She seeks to strengthen her case against same-sex unions by making marriage a cultural universal. But so far she’s a long way from making that case plausible. At worst, the prep work will just boil down to gesturing in the direction of a fictitious history of a single, unified marriage institution stretching back to the dawn of human civilization, one that liberals now want to dismantle. Hopefully she’ll do better than this.

[Edits: Typo corrected.]

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{ 102 comments }

1

jet 10.18.05 at 9:56 pm

How sad for the likes of Gallagher when 20 years from now we look back at those who apposed same sex marriage the same way we now look back at those who apposed interracial marriage.

2

Vance Maverick 10.18.05 at 10:00 pm

More importantly, the idea that marriage both formally and substantively enhances gender inequality is perhaps true these days

Minor typo — you mean “equality”, as she writes in the passage you quote.

3

Matt 10.18.05 at 10:12 pm

Another thing that I don’t understand about her position is that it seems to imply that we should not allow marriage between heterosexuals who can’t have kids. (It might even imply we shouldn’t allow marriage when people don’t want kids but I guess the idea is that they might change their minds.) So, sterility should mean no marriage- no marriage for the very old and for those w/ certain medical conditions. My understanding is that sterility used to be a ground for divorce in many places, and might still be in some, though not a common one. But, I don’t think it was ever a ground for refusing marriage and hasn’t been a ground for years and years at least. In the area of the law I know better than any other (immigration) it’s in fact not allowed for immigration inspectors who are investigating to see if a marriage is a “bonified good-faith marriage” to even ask if the couple is having sex, (many break this rule, but it’s against the rules to ask it)and there is absolutely no requirement that a couple either desire or be able to have children. We give the quite substantial immigration benefits that come with heterosexual marriage to couples that announce to the whole world that they do not want and even cannot have kids. So, at least in some areas it seems that the law quite explicitly recognizes that marriage is about something other than providing for kids. Whatever this something else it, it seems likely that same-sex couples can share it.

4

orion 10.18.05 at 10:13 pm

How sad for the likes of Gallagher when 20 years from now we look back at those who apposed same sex marriage the same way we now look back at those who apposed interracial marriage.

That is absurd. The social and legal oppostion to “interacial” marriage is a modern construct mostly centered in the US due to slavery and was further butressed by decidedly modern 20th century american eugenicists.

Like it or not marriage as a cultureal instition supporting procreation is as old as anything we can determine in human history.

At worst, the prep work will just boil down to gesturing in the direction of a fictitious history of a single, unified marriage institution stretching back to the dawn of human civilization,
whoa now. it is a institution strechinf back to the dawn of civilization, are you saying it is not?

5

Aaron Swartz 10.18.05 at 10:19 pm

The real question is _how much is she getting paid for this?_ and _is the Volokh Conspiracy getting a cut?_ I certainly wouldn’t want Volokh to get cheated on this.

6

Paul Gowder 10.18.05 at 10:38 pm

Frankly, I think the start of her “argument” thus far is a pitiful joke. She insists that the purpose of marriage is procreation, based not on any coherent argument about why we’d want procreation (no such argument exists in light of the ecological, economic, and democratic consequences of overpopulation — and an appeal to the aging of the population, social security, etc. would invite a ponzi scheme), but based on a bunch of hoary court cases that said so in dicta.

She also fails to even begin to suggest that gay marriages impair this interest. Such an argument would require her to show either (a) people who would otherwise be in gay marriages would, if gay marriage was forbidden, engage in straight and procreative marriages (I’d love to see her evidence for that one!); (b) people are encouraged to adopt by gay marriage, thus putting children in purportedly inferior same-sex-parent homes, and if they hadn’t adopted, the demand (loose kids) for adoptions would be fully satisfied by good straight couples (numerous propositions for which no evidence is likely to be forthcoming there); or (c) by some mystical process, gay marriage is likely to discourage straight people from getting married and procreating (once again, evidence?).

Since (a), (b), and (c) are all ludicrously implausible, and since there’s no actual reason to believe that we need more procreation, or that same-sex parents are any worse than opposite-sex parents, her procreation-based argument must utterly collapse.

7

Paul Gowder 10.18.05 at 10:50 pm

Oh, and what’s this “deinstitutionalization” business? How is worrying about “deinstitutionalizing” a “cultural universal” anything but intellectually sloppy mysticism? “Deinstitutionalism” means one of two things. (a) information transfer, i.e. the public stops getting married because they have received information changing their preferences. (Like “hey, maybe we don’t need to arrange ourselves in breeding couples after all.”) This is not only ok, but seems to be consistent with the basic premises of a liberal society. Alternatively, it could mean (b) somehow, expanding the franchise of marriage will make it less likely — without transfering any new relevant information — that people will get married. This might occur, for example, if gay marriage is so icky to the public that the folks down in Oklahoma decide the whole institution is tainted, and decide not to participate in it. Apart from the patent implausibility of this notion, one wonders if children are really so important to such people, and whether they should breed in the first place…

8

Andrew Edwards 10.18.05 at 10:50 pm

Lots of howlers in there. My favourite, from one of the linked posts is:

The California Baker court in 1859 laid out the the prime reason as procreation and a second reason as the happiness of the couple. Fair enough. But how does the happiness of the couple explain why two and only two people can get married?

then later in the same post…

Many features of our specific marriage system are not universal. Monogamy for example, is the exception in human history (although most large complex societies have this marriage system). But all of these systems (with very few and very limited exceptions) define marriage as male and female.

Unh-hunh. So…

Only procreation can explain why marriage can only be between one man and one woman, but procreation also explains why marriage might be between one man and several women. Which is, by the way, somehow not a marriage involving two people of the same sex.

What I’ll actually be interested to see is what she does with the possibility that we actually link marriage to procreation. Gay couples planning to have kids can marry, infertile straights cannot. If I impregntate two women, bam, two wives. Like, wouldn’t that be an even more totally awesome link between marriage and procreation? We’d totally be honouring the tradition then.

Here’s one. If humans had, for the last, say 5000 years, been marrying gay people, would gay marriage still be wrong?

Gah.

9

fifi 10.18.05 at 10:59 pm

I always thought domestic arrangements such as marriage existed because otherwise what’s to be done with young men? They’re nothing but trouble.

10

Matt 10.18.05 at 11:03 pm

No, fifi, that’s why we have war. Marriage is often like war, but it’s for older men.

11

McDuff 10.18.05 at 11:54 pm

it is a institution strechinf back to the dawn of civilization, are you saying it is not?

What, monogamous marriage defined as a contract between two equal partners based on love and affection? I’d say that was damn new, yeah. Don’t know about the dawn of civilisation: I’m pretty sure it wasn’t that way at the dawn of the last century, when civilisation was fairly old and established.

Women aren’t the property of men any more: that’s a huge, massive change in the traditional conception of marriage. You might use the same words, but they’re by no means the same cultural institutions. Marriage has been transformed from being a manly political and business transaction between father and new husband, into some totally pussified thing involving “feelings” and “mutual respect” and other garbage like that. Frankly, straight marriage is really goddamn Gay these days. It’s no wonder the gays want in on a piece of the action.

12

fjm 10.19.05 at 12:28 am

Marriage as a mode of ensuring the well being is *not* a cultural universal.

There are cultures which pass property to sisters sons. In this system, Uncles prove very reliable carers of nephews, often much better carers than fathers in marriages do in our world.

One could argue that the move from Uncle care to father care is actually a move to make it easier for men to walk away. Much harder to leave a sister (whose mother is also your mother and likely to belt you one) and her children, than a wife and her chldren.

13

blah 10.19.05 at 1:21 am

Does the genetic fallacy have any role to play here?

14

rollo 10.19.05 at 2:18 am

“…as old as anything we can determine in human history…”
The Bushmen of the Kalahari are being thugged into oblivion right now. God knows how many others have disappeared for keeps without leaving any marks in your “history”, which is not the history of the human race in any but the most incomplete and biased sense.
So pointing at the historical record, by either side, is sophomoric.
Living in small bands, tribes, clans, can easily make a lack of ritually recognized parents inconsequential to a child’s well-being. It’s only when people are atomized to begin with, and thrown against each other in fierce competition, that the home becomes a residence for binary couples, a fortress against the inhospitable.
The problem may be that rather than the gender make-up of the ruling couple in the home.
-
“Women aren’t the property of men any more”
Nor were they in any of the matriarchal societies we know about. But again, since those societies were all eliminated through one means or another, and any truly accurate native records of how they lived as well, it’s ludicrous to point to the little we do know to bolster an argument.
Logic will tell you we don’t have to live like this. Logic and perception will tell you we don’t actually live like this, anyway; the laws and moral codes say we should – but we don’t.
The divorce rate in the US is right around 50% isn’t it?
-
Marriage is a tool for control of the genome.
The conceit that eugenics was stymied by intellectual ridicule, or halted by the Allied Forces in WW2 – that there is nothing “eugenic” about the way we live now – is specious nonsense.
The Bushmen are victims of the currently accepted, though unspoken and recognized, eugenic order.
-
Gay marriage is another pseudo-issue, just like abortion and evolution.
It polarizes and inflames and pits two dim armies against each other, wasting their strength and time while the real danger continues unimpeded.
The issue is children, and their welfare.
But any conscious recognition of that condemns the whole society, not just its marriage laws.

First, it is plain that the

15

rollo 10.19.05 at 2:26 am

“…as old as anything we can determine in human history…”

The Bushmen of the Kalahari are being thugged into oblivion right now. God knows how many others have disappeared for keeps without leaving any marks in your “history”, which is not the history of the human race in any but the most incomplete and biased sense.
So pointing at the historical record, by either side, is sophomoric.
Living in small bands, tribes, clans, can easily make a lack of ritually recognized parents inconsequential to a child’s well-being. It’s only when people are atomized to begin with, and thrown against each other in fierce competition, that the home becomes a residence for binary couples, a fortress against the inhospitable.
The problem may be that rather than the gender make-up of the ruling couple in the home.

“Women aren’t the property of men any more”

Nor were they in any of the matriarchal societies we know about. But again, since those societies were all eliminated through one means or another, and any truly accurate native records of how they lived as well, it’s ludicrous to point to the little we do know to bolster an argument.
Logic will tell you we don’t have to live like this. Logic and perception will tell you we don’t actually live like this, anyway; the laws and moral codes say we should – but we don’t.
The divorce rate in the US is right around 50% isn’t it?

Marriage is a tool for control of the genome.
The conceit that eugenics was stymied by intellectual ridicule, or halted by the Allied Forces in WW2 – that there is nothing “eugenic” about the way we live now – is specious nonsense.
The Bushmen are victims of the currently accepted, though unspoken and recognized, eugenic order.

Gay marriage is another pseudo-issue, just like abortion and evolution.
It polarizes and inflames and pits two dim armies against each other, wasting their strength and time while the real danger continues unimpeded.
The issue is children, and their welfare.
But any conscious recognition of that condemns the whole society, not just its marriage laws.

16

Adam 10.19.05 at 2:33 am

No-fault divorce is indeed a highly questionable idea, at least if there are children.

17

snuh 10.19.05 at 3:04 am

the whole thing stinks of trying to find an argument to support a view you have reached on other grounds [which, oddly, must remain unstated]. i mean one of the other volokh’s even chimes in by observing “My current thinking, for what its worth, is that the best argument in favor of traditional marriage may be a Hayekian (and perhpas Oakeshottian) one.”

surely the simplest explanation is that gallagher just doesn’t like gays.

18

Sam Dodsworth 10.19.05 at 3:33 am

Like it or not marriage as a cultureal instition supporting procreation is as old as anything we can determine in human history.

Although, interestingly, same-sex marriage as a religious institution celebrating the love of a same-sex couple actually goes back to the middle ages.

19

snuh 10.19.05 at 3:38 am

defining marriage at common law in 1900, one would’ve asserted three fundamental conditions:

1. voluntary union.
2. between one man and one woman.
3. for life.
consider the first and third conditions. “for life” is now basically a dead letter, with no-fault divorce. conversely, whereas voluntariness used to be a dead-letter, now it actually means something: most people in western nations are free [or, more free than previously] to decide whether, when and to whom they marry, and they are also [more] free [than previously] to decide whether they wish to remain married [what with no-fault divorce, changed marriage property laws, and post-divorce maintanence/child support].

these changes do not tinker at the edges of what a marriage is. what we call marriage would have been unrecognisable 100 years ago. so much for “the social institution…[of] every known human society”.

i suppose what maggie thinks she’s arguing is that only the second condition [one man and one woman] is the universal one. first, how convenient. second, it’s not true; many societies, from mormons to muslims, reject it in the form of polygamy.

20

Scott Martens 10.19.05 at 3:59 am

I’d ask the following question:

If the legalisation of exclusively heterosexual marriages is justified because only those marriages can lead to procreation, does Ms Gallagher believe that infertile people should be legally forbidden from marrying, and that the discovery of infertility in one of the partners should entail annulment rather than divorce proceedings?

It seems to me that this is the logical outcome of her arguments.

21

Tim Worstall 10.19.05 at 4:17 am

19. That would, in part, be the view of certain churches….that infertility is a valid reason for an annulment.

22

Scott Martens 10.19.05 at 4:33 am

Yes, but Tim, the point is that anyone can get divorced, at any time, and for any reason. Her argument is that gay couples should not enjoy any (or at least not all) of the legal and institutional securities offered to heterosexual couples, including the right to have the division of assets decided by a court in the event that the relationship ends. This is a very serious benefit offered to dependent spouses of heterosexuals, and one which cannot be denied by churches regardless of what they consider a binding marriage. If this is to be denied to gay couples on the grounds that they cannot reproduce, by what logic should it be extended to infertile couples, or for that matter to couples that choose never to have children? Would she offer instant annulments made available to all couples without children?

She has set her arguments up as a defense of “traditional” marriage as a social necessity. This is a serious contradiction to her arguments.

The legal accoutrements of marriage have generally been understood in terms of the protection of both dependent spouses and children. She claims that a gay relationship can have no children and therefore does not merit those accoutrements. But actual US law explicitly names dependency as a justification for legal protection of marriage as an institution, while the obligation of both parents to support children is independent of marriage. I should think this makes the protection of dependent spouses a far, far firmer thing to consider the legal core of modern marriage.

There is no longer a meaningful category in US law concerning legitimacy. The obligation to support one’s children has been totally independent of marriage since the Uniform Paternity Act in 1973. But marriage still means the obligation to support a dependent spouse. And, gay couples are perfectly capable of having dependent spouses. That she has totally ignored this aspect of marriage is an enormous hole in her case.

23

abb1 10.19.05 at 4:37 am

I like the name: Maggie Gallagher. Sad that cool name like this has been wasted on a wingnut.

24

Scott Martens 10.19.05 at 5:07 am

Let add another point: Her argument against seeing gay marriage by analogy with interracial marriage is suspect. She argues in her paper that the legal recognition of same-sex marriage will place pressure on private institutions – she means churches – that do not wish to acknowledge SSM. But in the case most comparable to the US, the Canadian Supreme Court – an institution far more prepared to impose non-discrimination on private institutions than any plausible US Supreme Court – ruled explicitly that the government does not have the power to compel churches to perform gay marriages.

On the other hand, this “will somebody think of the children?” argument – children need a father and a mother – is an excellent argument against interracial marriage. When Loving v. Virginia was decided, the child of an interracial marriage was almost inevitably destined to be worse off than the child of a racially homogenous marriage. If the protection of the best interests of children is the core of her case for exclusively protecting straight marriage, how does she justify the legalisation of interracial marriages that will children at a distinct disadvantage in a racially polarised America?

25

Daniel 10.19.05 at 5:45 am

defining marriage at common law in 1900, one would’ve asserted three fundamental conditions:

1. voluntary union.
2. between one man and one woman.
3. for life

Condition 1 is very debatable and was certainly confined to particular geographical regions and social classes. Even condition 2 was by no means universal.

26

rea 10.19.05 at 6:19 am

Bleary from staying up all night taking care of my same-sex partner’s sick 2-year-old grandson, I wonder why the heck Ms. Gallegher thinks that gay marriage is inconsistent with child rearing . . .

27

james 10.19.05 at 6:43 am

Some people think marriage is about procreation, others think it’s about a lifetime commitment between two equals. I think it’s really been about defining rights over children – in particular the rights of fathers over their biological children and the obligations of husbands to their wives children.

Marriage has been a way for men to access a whole suite of rights over their children that they wouldn’t automatically get otherwise (and for women to get fathers to sign up to a whole suite of obligations). If you consider this one of the justifications for marriage, then I think SSM sits quite uneasily with it. Same-sex couples can’t have biological children together, so if this justification is important it can’t be used. I think this reasoning (that marriage is about defining rights over children) is different from Gallagher’s suggestion marriage is about procreation.

28

harry b 10.19.05 at 7:15 am

I do know her view on divorce. She thinks that about 1/3rd of divorces benefit children, and about 2/3rds harm them; and that social sicentists can identify which are which; so policy should be designed to optimise the rate of divorce: that is, we should asopt whatever divorce law does best at getting the good-for-children divorces to happen and stopping hte bad-for-children divorces from happening. So, in my view, no bad faith on this. (She also believes that most bad-for-children divorces aren’t such great things for the adults involved — that is, that the marriages will improve if the parents are successfully discouraged from divorcing).

I got all this from her book, The Case for Marriage, with Linda Waite. I just assumed that support for, not opposition to, same-sex mariage was a natural implication of their arguments, so I’m interested in what she’ll say.

29

MrM 10.19.05 at 7:29 am

James

To follow your logic, marriage is about defining

1) What happens if two people decide to split up:
– Children (including adopted)
– Property

2) To a lesser degree , what happens during the time together (e.g., responsibility of employers to provide partner’s benefits)

Seems like a strong case for SSM

30

james 10.19.05 at 7:58 am

mrm;

I’d just note that marriage as an institution which defines rights over children predates both divorce and employment benefits for spouses. These were both tacked on afterwards. I’ve no problem with gay people accessing both these benefits, but if marriage is in someway about rights over children that does imply that you can’t just copy and paste the provisions of OSM to create SSM.

31

serial catowner 10.19.05 at 8:09 am

Marriage has only ever been important with relation to money, property, and custody. In the past, only the well-to-do worried about these issues. In those days the wealthy could buy privacy (and judicial decisions) that they can no longer buy.

The poor, on the other hand, find marriage is increasingly important to their rights and financial well-being.

Basically, we’ve become a police state where you need to have all your papers in order. All the gum-flapping by the Volokh crowd isn’t going to change the real history of marriage.

Incidentally, in an ‘Intro to Social Work’ class we were told that there were three ‘great’ institutions- the family, the state, and the church- based on the fact that they had almost always been there, and probably would be for the foreseeable future.

Works for me.

32

Steve LaBonne 10.19.05 at 8:15 am

I find myself shaking my head at both gay-marriage proponents and gay-marriage opponents. The whole discussion illustrates for me why it was always a bad idea for the state to take over all the trappings of “marriage”, with all of its complex emotional subtexts, from the churches. If I had my way then the law would simply recognize and stand behind domestic-partnership contracts, made between consenting adults regardless of gender, with, as now, appropriate protections built in for chidren and for each partner’s economic interests should they split up. Religious organizations would remain free to define and celebrate marriage any way they wished. Go for the steak and let the declining number of traditionalists hang on to the sizzle.

33

Redshift 10.19.05 at 8:16 am

james:
but if marriage is in someway about rights over children that does imply that you can’t just copy and paste the provisions of OSM to create SSM.

Er, why not? We have well-established law concerning adopted children in marriage (both children of one parent who are adopted by the other, and children that are adopted by both); why would that not apply unchanged to same-sex marriages?

34

Uncle Kvetch 10.19.05 at 8:39 am

the whole thing stinks of trying to find an argument to support a view you have reached on other grounds [which, oddly, must remain unstated]. [...] surely the simplest explanation is that gallagher just doesn’t like gays.

Thanks, snuh–that was my reaction too. Which leaves me scratching my head a bit over what just Kieran meant when he ended his post with “Hopefully she’ll do better than this.” What are you hoping for, Kieran? That next time she’ll back up her bigotry with something more intellectually coherent?

35

james 10.19.05 at 8:48 am

redshift;

I’m really thinking about the provisions which relate to the biological children of a marriage, and the idea of a presumptive parent and automatic parental rights.

If a husband’s wife has a child it is presumed to be his. The law surrounding this is hideously complicated and varies from place to place, so I’m not going to try and sum it up. But, if one woman in a SSM had a child would her partner be presumed to be the other parent? I think there are situations where if you treat SSM the same as OSM things get strange.

Adoption and IVF are the two cases where usual law on who is the parent of a child and what rights they have doesn’t apply. In these circumstances people give explicit consent to being given certain rights and obligations (and their partner getting them too). This could easily be extended to same-sex couples. But when you’re dealing with the situation surrounding the children born through usual means I don’t think things are this simple.

36

Grand Moff Texan 10.19.05 at 9:16 am

Essentially, she thinks that the main public purpose of marriage is procreation—this is the reason why it enjoys the legal status it does.

Then she’s already blown it. There are no penalties for not procreating, and the penalties for procreating outside marriage have been historically inconsistent.

Next?
.

37

lemuel pitkin 10.19.05 at 9:59 am

Steve,

“Get the state out of marrage” sounds nice in principle. But in practice, you’ve got to deal with:

* employer benefits for partners;
* joint ownership of property;
* parental rights in case of separation;
* inheritance, power of attorney, etc. in case of dead or disabled partners;
* etc.

Fact is, we’re committed in all kinds of social and institutional ways to the couple-plus-dependent-children as the atomic social unit. And the law can’t just ignore that.

38

lemuel pitkin 10.19.05 at 10:04 am

In other words, once you’ve incorporated

appropriate protections for chidren and for each partner’s economic interests should they split up

into your domestic partnerships, you’ve got marriage in all but name. Which is why the state of the art defense of marriage amendments now bad domestic partnership laws as well.

Get over this sophomoric pox-on-both-houses thing. You’re on our side.

39

Steve LaBonne 10.19.05 at 10:15 am

That’s exactly what I want, Lemuel. Domestic partnerships legally (but not verbally) equivalent to marriage for everyone regardless of gender. The word “marriage” returned to the world of religion where it belongs, and not appearing in the law at all. Of course I’m on your side, quite thoroughly so, and I think my position offers one of those rare opportunities for almost everybody to get pretty much what they want. (There will still be squawking on the right but it will resonate far less with the hesitant center.) I think it was a tactical mistake for gay people to become emotionally attached to the mere WORD “marriage”, and I think it derives from the earlier mistake of the secular state agreeing to take over the task of “blessing” of something that was not (entirely) secular.

40

Tim Worstall 10.19.05 at 10:29 am

Scott Martens…sorry, I wasn’t addressing teh main argument at all. Just that one tiny point of fact.
My own opinjion is with .39. Marriage being whatever religious farafarol people wish to have and the state concerning itself with domestic partnerships. Keep the two words apart completely. Thus if one wants a Catholic/Baptist/Mormon/Hindu/Church of the Disco Mouse (?) marriage one can but the legal obligations being defined by the domestic partership. Which shouldn’t be defined by the sex of the participants, nor even by their sexual relationship (or number of such).

41

Steve LaBonne 10.19.05 at 10:35 am

Oh, referring back to Kieran’s post, as to the supposedly wonderful way the current laws protects kids according to Gallagher: my wife buggered off and left me to do all the actual work of raising our teenage daughter, including 100% of her financial support (the ex is barely motivated to support herself let alone the kid) while she gets to play “weekend parent”. Which is pretty much the way it always was during our marriage. Yet the law says I still have to pay spousal support to her sorry ass, cutting heavily into limited resources (I’m a modestly paid public employee) that I could otherwise devote to my daughter, especially to saving for her education. Tell me about how the law is “protecting” the kid in this instance.

42

bob mcmanus 10.19.05 at 10:39 am

“Moreover unlike bans on miscegenation (which were formally equal but substantively served to help keep the races separate so that one race can oppress the other” …gallagher

Substitute preference for race here and you understand what is going on. There is no difference from anti-miscegenation laws, and the opponents of SSM have the same separatist and oppressive purpose. Which is one reason SSM is so important

43

abb1 10.19.05 at 10:44 am

I’m with Steve LaBonne – civil unions for everyone. ‘Marriage’ for religious people, outside the state, outside any normal legal framework. And whatever restrictions their church wants to impose – that’s fine, who cares.

44

Zed Pobre 10.19.05 at 10:47 am

Do we have any German readers here? As I understand it, Steve, the foundation for what you want is actually already how it works in Germany. You can get married there in a Church, but it doesn’t have any legal ramifications at all. Only the papers you file in a government office do.

45

sennoma 10.19.05 at 10:50 am

Lemuel: I’m on your side, too, if by that you mean that I support gay marriage and consider civil unions for gays only to be a form of apartheid. “Separate but equal” is bollocks.

Nonetheless, I don’t see why civil unions can’t entail all the rights and benefits you talk about in #37. My objection to civil unions for the glbt and marriage for the hets is that it creates a second class of citizens even if the civil contracts are so constructed as to give exactly the same rights and benefits as marriage. I’d still take that situation over the current one, as a first step towards real equality.

Would it really be such a step? I think so. I’m straight and married, but it wasn’t a church wedding (wife and I are atheists; we were in fact married by an Elvis impersonator in LV). If the law had allowed civil unions for anyone and marriage only for straights, you bet we’d be “civil union’d” instead of married. I think an increasing number of straight couples would make that choice. Together with the familiarity factor (more and more “civil union’d” glbt couples, no apocalypse, hey maybe it’s no big deal after all), I think this could pave the way for either “marriage for all” or “get the State out of marriage a la Steve #32″. Either outcome would be acceptable to me.

46

Steve LaBonne 10.19.05 at 10:50 am

Thanks zed, I was going to say that according to my limited understanding of how things work in Western Europe, there are already real-world examples of what I propose. Good to have confirmation.

47

Antoni Jaume 10.19.05 at 11:40 am

IIRC in France only civil marriage is legal. Church marriage is a private arrangement that has no legal force. In Spain religious ceremony may be used to set a marriage, or it can be a purely civilian matter, and now there is a SSM legislation.

DSW

48

rea 10.19.05 at 12:01 pm

“the law says I still have to pay spousal support”

Spousal support (as distinct from child support, or division of marital property) is relatively rare nowdays, seldom awarded except where (1) the divorcees are an older, “traditional” couple, meaning the wife was a career homemaker with little in the way of marketable skills (these people are rapidly dying out), or (2) one divorcee supported the other while the other acquired marketable skills (e. g., wife supported husband while husband went to law school).

49

Steve LaBonne 10.19.05 at 12:07 pm

Rare? Not in Ohio, it isn’t. Here, the guidlines provided for family-court judges go pretty much on autopilot by length of marriage and current incomes, with only marginal consideration of any other factors. So I have to pay despite the fact that neither of the circumstances you mention obtains.

50

Dan Nexon 10.19.05 at 12:26 pm

The standard “rationalist” arguments against gay marriage – and Gallagher’s are only the latest iteration of the ‘same old same old’ – are so obviously bankrupt it seems a waste of time to even give this much attention to them.

The only non-homophobic case I can develop against gay marriage is a Burkean one: we don’t know enough about the complex relationships of social institutions to radically change one overnight. Of course, this argument implies starting with civil unions and then moving forward, so it isn’t a very powerful one for the anti-gay rights crowd even if we accept its assumptions.

51

lemuel pitkin 10.19.05 at 12:27 pm

I think it was a tactical mistake for gay people to become emotionally attached to the mere WORD “marriage”,

Seems to me you’re the one with the emotional attachment here, Steve.

Let’s stipulate that marriage and domestic partnership describe the same set of rights and responsibilities. So to open those rights & responsibilities up to gay people, we can either (1)change one bit of family law to remove the opposite-sex requiorement for marriage or (2) rewrite the whole thing to get rid of marriage entirely (and of any reference to religious isntitutions). (1) is simple, easy, has already been done in a numebr of countries and Massachusetts (and very nearly elsewhere in the US), (2) is a much bigger lift. So if I’m a gay person who doesn’t care much about words but does care about equal rights, which do I choose?

I see a tactical mistake here, all right, but it ani’t the GLBT people making it.

52

Uncle Kvetch 10.19.05 at 12:34 pm

The standard “rationalist” arguments against gay marriage – and Gallagher’s are only the latest iteration of the ‘same old same old’ – are so obviously bankrupt it seems a waste of time to even give this much attention to them.

Yes, and as much as I’m loathe to do the meta-level “Why was this even posted in the first place?” thing, I’m going to ask–sincerely, not rhetorically or snarkily–why Kieran chose to give Gallagher’s piece the attention he did. “Right-wing website posts shallow, intellectually dishonest ‘argument’ against SSM” is about as attention-worthy as “Dog bites man,” isn’t it? I’m fairly certain that if MG’s piece had appeared on, say, the Corner at National Review Online, Kieran wouldn’t have seen the need to give it a second thought. So I’m left wondering: Is this a case of “It’s on Volokh, so we need to treat it seriously, whether it deserves it or not”? Or what?

53

lemuel pitkin 10.19.05 at 12:42 pm

Presumably out of some lingering notion that Volokh is better than that.

(BTW I made a conscious decision to go after Steve Labonne in this thread rather than pile on poor Maggie G. Arguing with people you respect makes you smarter; arguing with dopes makes you dumb.)

54

Uncle Kvetch 10.19.05 at 12:58 pm

Presumably out of some lingering notion that Volokh is better than that.

Ah…you mean hoping that “In defense of torture” was just a fluke?

55

Steve LaBonne 10.19.05 at 1:10 pm

Lemuel, don’t confuse me with the Gallaghers of the world. I’m talking in completely cold blood about 1) the political practicalities of acheiving goals you and I share, 2) my view, as a secularist, of the proper role of the state. In some cases- and I think this is one- we have a choice between waiting until the currently unenlightened become enlightened (which could take quite a while the way this country is going), or achieving our goals by removing a bone of contention that turns out, in my estimation, to be largely trivial and almost purely verbal. And note that I am calling for precisely equal treatment of all couples, regardless of genders, with regard to civil unions; not for a moment to I wish to deny gays something I would accord to straights. That’s the whole point.

56

SamChevre 10.19.05 at 1:49 pm

Steve,

If I had my way then the law would simply recognize and stand behind domestic-partnership contracts, made between consenting adults regardless of gender.

On some days, I agree with you; however, I’m not sure how you limit this so that it is coherent. Can I enter a domestic partnership with my sister? Would that entitle me to combine incomes for tax purposes? Would it entitle her to be covered by my health insurance? It seems that the partnerships could become merely a tax avoidance mechanism with no other substance.

I have ideas on how I would structure the law to avoid this, but I’m curious what your proposal would be.

57

Colin Danby 10.19.05 at 1:53 pm

I might go after the underlying functionalism of Gallagher’s argument a bit more thoroughly than Kieran does in the last paragraph, though the questions there point in the right direction. “Function” as a verb is slippery, especially as one passes from an (already tenuous) argument about an institution performing a function to an even more tenuous argument that additional institutions must regulate the first institution to protect the “society’s interest in _____”. The unit “society” also needs more scrutiny.

But this is a good example of how functionalist logic serves a thousand arguments for whatever the status quo happens to be: (i) either project (an element of) the status quo back to the dawn of time or present it as an essential element of modernity (ii) construct a just-so story for how the status quo performs a needed function (iii) portray the alleged function as under threat. As other folks have pointed out this pattern served admirably for arguments against repealing anti-miscegenation laws. The main wrinkle here is that the “threat” is a pop-science argument about genetic predisposition.

FJM is right: “marriage” does not stand up as a cultural universal; see John Borneman’s 2005 “Marriage today” American Ethnologist
February 2005, Vol. 32, No. 1: pp. 30-33

and

Borneman, John. 1996. “Until Death Do Us Part: Marriage/Death in Anthropological Discourse.” American Ethnologist 23(3): 215-235.

for a start on the literature. The larger point is that if we ask the question what is the historical role of “marriage” in human society, there is a large scholarly literature that has gathered evidence and thought it through, and anyone who wants to be taken seriously on this question needs to engage with that literature — not necessarily agree with all of it, but work through it. I have lost patience for arguments-from-ideology, however much the ideology has been tricked out with just-so stories, pop natural science, or pop sociology.

58

Uncle Kvetch 10.19.05 at 2:06 pm

Can I enter a domestic partnership with my sister?

In France, you could–that is, a “Civil Solidarity Pact” can be signed between pretty much any 2 adults, to the best of my knowledge. I was in France when the PaCS was debated and passed into law in ’99, and I remember “elderly spinster sisters” being one of the frequently cited hypotheticals of non-romantically linked adults who might wish to endow their relationship with a certain legal standing for purposes of inheritance and the like.

59

lemuel pitkin 10.19.05 at 2:20 pm

In some cases- and I think this is one- we have a choice between waiting until the currently unenlightened become enlightened (which could take quite a while the way this country is going), or achieving our goals by removing a bone of contention that turns out, in my estimation, to be largely trivial and almost purely verbal.

You’re half right here, but you’ve got it backward: Removing the state from marriage = “waiting until the currently unenlightened become enlightened.” It’s a much bigger project than gay marriage.

Your premise seems to be that opponents of gay marriage would have no object to same-sex unions granting all the rights of marriage if they were called something else. In that, you are wholly wrong.

don’t confuse me with the Gallaghers of the world

Beleive me, I’m not. If I did, I wouldn’t be talking to you.

60

Steve LaBonne 10.19.05 at 2:20 pm

samchevre, I have no problem at all with the very interesting French law of which uncle kvetch just informed us. Do you, and if so, why?

By the way, I hear conservative complaints about the “marriage penalty” all the time, so how would this be a tax avoidance strategy?

61

Mr. Bill 10.19.05 at 2:23 pm

I’m that gay guy with kids the Right wing doesn’t even think exists. When my late wife died, I became the custodial parent. My boyfriend and I have discussed declairing domestic partnership to his company so I can get a better grade of insurance.
I know several gay couples who are parents.
Gallagher doesn’t seem to know that we are the reality in her flogging of a fairy tale picture of marriage.
(To be clear, me and my guy aren’t planning to get married. But the idea has come up for the kids’ sake….)

62

Steve LaBonne 10.19.05 at 2:25 pm

Well, Lemuel, you might be right. But I’m not so sure, if presented as a “government gets its hands off marriage” measure combined with (wink wink, nudge nudge) assurance that the law will never sanction gay “marriage”, that it couldn’t be pulled off a lot sooner than winning acceptance for gay marriage openly so called. If done with enough finesse I think this could be a wedge to split the great mass of moderates from the hard right. (I’m quite prepared to be cynical when the object is securing a basic human right.) Of course, expecting the pathetic Democratic Party to execute such a strategy with anything resembling finesse is another matter entirely…

63

SamChevre 10.19.05 at 2:32 pm

Steve,

The “marriage penalty” occurs when both partners have approximately equal incomes. What I’m thinking is that someone with a high income could pay a college student $1000 to enter into a “domestic partnership” (with no sharing of assets, income, housing, etc, and a “termination by notification” provision), file taxes on joint income, and benefit from the lower tax rates and higher deductions on “married filing jointly.”

I don’t necessarily have a problem with the French arrangement, no. However, it would greatly increase health insurance costs to employers (why not add your unemployed friend as a domestic partner), and would considerably reduce tax revenue–these considerations could be problematic. These problems would be magnified if there were no restrictions on number, which would seem like a logical next step (if I can add one sister, why not both?)

More fundamentally, it seems that the state-sponsored benefits of marriage assume some level of permanence and of mutuality (shared decision-making); I’m not sure that many of them make sense without that context.

64

Uncle Kvetch 10.19.05 at 2:33 pm

Your premise seems to be that opponents of gay marriage would have no object to same-sex unions granting all the rights of marriage if they were called something else. In that, you are wholly wrong.

Steve, I think Lemuel’s right on this. Many (most?) of the anti-SSM constitutional amendments that have been passed at the state level in the last few years include language that make clear that it’s not (only) about excluding gays from marriage per se–it’s about excluding us from any and all of the legal rights that accrue to the married, whatever term might be used.

65

abb1 10.19.05 at 2:36 pm

Come on Sam – can’t have civil unions because there’s no national health insurance? You’re looking from the wrong end of the telescope here.

66

Uncle Kvetch 10.19.05 at 2:36 pm

More fundamentally, it seems that the state-sponsored benefits of marriage assume some level of permanence and of mutuality (shared decision-making); I’m not sure that many of them make sense without that context.

SamChevre, it’s my impression that this same assumption underlies the PaCS in France. In that sense, my reference to “any two adults” might have been misleading. The “two elderly spinsters” (whether sisters or not) in the hypothetical were always assumed to have that “level of permanence adn mutuality” you refer to. I don’t know the specifics but I’m fairly sure that your “college student” scenario wouldn’t pass muster under current French law.

Someone with more detailed knowledge of the PaCS is welcome to jump in here….

67

Steve LaBonne 10.19.05 at 2:40 pm

I know. But I do think- and I may be wrong- that the emotionalism the fundies are able stir up over the word marriage is what enables them to garner votes for this crap well beyond the fundie base. As I said, I’m interested in the idea of trying to drive a wedge in there, that might deprive them of a sufficient number of the fellow-traveler votes they need to pass this stuff. I live in Ohio, where the atmosphere is pretty bad, so it’s hard to see how my approach could make it worse.

68

abb1 10.19.05 at 3:39 pm

What Steve said. Give them their fetish back and start anew.

69

BigMacAttack 10.19.05 at 3:39 pm

My cynic says -

Nonsense. Civil Unions are the equitable compromise and more easily attained goal(at least via the ballot box).

But the issue is less about benefits and wills and more about acceptance. Gay marriage is the government seal of approval that homosexuality is A OK ALL GOOD! Maybe the ultimate seal.

The culture war has two sides.

Also coupleless children can be thought of as well dressed free riders. We can easily pretend they might in the future or are trying to have a family. You cannot keep up the pretense that marriage is about family if you allow in homosexuals.

Marriage has changed. Barring homosexuals is only a lame attempt to stave off the last nail in the coffin. Marriage is no longer a life commitment about family. It is what two people who like to touch each other’s sexual organ’s do when they are in love.

70

james 10.19.05 at 3:41 pm

“Can I enter a domestic partnership with my sister?… It seems that the partnerships could become merely a tax avoidance mechanism with no other substance.”

When civil partnerships in the UK were up to be introduced this was a real issue. Members of the “homophobic right” in the Lords introduced amendments so that you could enter a partnership with your sister, claiming that it unfair that elderly spinsters were excluded, the gay lobby and the government argued that this was a wrecking tactic, that it would cause lost revenue for the treasury, and it didn’t get through. At the moment you can’t enter a civil partnerships with a family member. I hate to say it, but I think it just comes down to trying to draw a distinction between “legitimate” and “illegitimate” tax avoidance.

71

Ampersand 10.19.05 at 3:54 pm

Regarding the idea of civil unions for all, and “marriage” to be a word without government recognition, it would be a disaster for SSM proponents to get behind this proposal. Then we would be literally trying to destroy marriage as an institution, just as SSM opponents say we are. Imagine thousands of fliers mailed to every voter saying “the homosexual lobby is trying to wipe out marriage from American law”; we’d be crucified.

I just want legal equality between straights and queers; I don’t care if it happens because we have civil marriage for all or civil marriage for none. But strategically, civil marriage for all is a far better strategy.

* * *

Regarding someone’s criticism of a post resopnding to Gallagher: It would be a mistake to ignore Gallagher. Whether or not we respect her, she’s a leading intellectual opponent of SSM, and her arguments are influential and echoed throughout the right wing and much of the so-called “marriage movement.”

* * *

Finally, it’s interesting to see what anti-SSM folks were saying about marriage before SSM became a major issue. Look at this statement of marriage’s six important dimensions, produced by the Institute for American Values in 2000, when Gallagher was affiliated with the IAV. Clearly, before they began fixing their thoughts around the need to oppose SSM, they realized that biological child-rearing was not the sole important dimension of marriage.

72

SamChevre 10.19.05 at 4:02 pm

As I mentioned in my first post, I’ve thought about how to structure partnerships a lot. My tendency is to considerably tighten the rules for government recognition of partnerships, and to apply those rules to all partnerships. (In other words, many currently acceptable marriages would not have legal force under “Sam’s rules”; I would grandfather all current marriages, however.)

Sam’s rules:
For the state to recognize a partnership it must be include:
1) All or substantially all property shall be jointly controlled by the partners.
2) Only one partnership will be recognized per joint lifetime (as long as a former parner is alive, you can’t have a new legal parner.)
3) Partnerships shall consist of exactly 2 people, both of whom must be adults.

Parnerships could be dissolved, but the state would not recognize any other partnerships for those two people.

73

lemuel pitkin 10.19.05 at 4:02 pm

Regarding the idea of civil unions for all, and “marriage” to be a word without government recognition, it would be a disaster for SSM proponents to get behind this proposal. Then we would be literally trying to destroy marriage as an institution, just as SSM opponents say we are. Imagine thousands of fliers mailed to every voter saying “the homosexual lobby is trying to wipe out marriage from American law”; we’d be crucified.

Exactly.

74

lemuel pitkin 10.19.05 at 4:07 pm

So Samchevre, you want to legalize gay marriage, and outlaw divorce? In terms of poltiical plausibility, I think we’re approaching absolute zero here. All it needs is a proviso that no one gets a pony.

75

SamChevre 10.19.05 at 4:16 pm

I’m a libertarian; none of my ideas are politically plausible. (Propose some politically plausible conditions, please–I’d like to have something that has a chance of becoming law in my lifetime.)

76

Dan Nexon 10.19.05 at 4:21 pm

Actually, the beauty of the anti-SSM crowd descending into such functionalist logic is that it boomerangs so easily. If we evaluate access to marriage solely on the grounds of, say, social utility, wouldn’t it be much better to entice gays and lesbians into marriage? In fact, we should encourage people like Gallagher to transform the debate into one of reason, evidence, and causal logic rather than one of kulturkampf. At least, that’s the optimistic take.

77

Uncle Kvetch 10.19.05 at 4:21 pm

Gay marriage is the government seal of approval that homosexuality is A OK ALL GOOD!

Right. And by allowing Britney Spears to get married while on a drinking binge, and then to divorce 48 hours later, “The government” was giving a big thumbs-up and a “You go, Girl!” to the idea of marriage as a fun thing to do when you’re drunk in Nevada.

Not to put to fine a point on it, but I don’t give a rat’s ass about “approval.” I want equality under the law.

78

lemuel pitkin 10.19.05 at 4:26 pm

Samchevre-

Unless you’re hit by a bus, gay marriage will become law in your lifetime.

79

sennoma 10.19.05 at 4:31 pm

why not add your unemployed friend as a domestic partner

The partnership should entail responsibilities as well as rights. So you’d better be sure your unemployed buddy doesn’t plan to sponge off you, say by leaving and filing for “partner support”.

80

rea 10.19.05 at 4:31 pm

“You cannot keep up the pretense that marriage is about family if you allow in homosexuals.”

Uh–what the heck are all these kids doing living with my partner and me, then?

81

SamChevre 10.19.05 at 5:07 pm

Lemuel,

I wasn’t talking about gay marriage–I was talking about government getting entirely out of defining marriage as something I don’t think will happen in my lifetime.

82

SamChevre 10.19.05 at 5:08 pm

Sennoma,

You are right that the partnership needs to involve responsibilites as well as rights. My question is, what should those responsibilities be?

83

Brett Bellmore 10.19.05 at 5:20 pm

I think you’re all confusing an argument that restricting marriage to heterosexual couples passes the “rational basis” test, with it actually having to have a rational basis. Considering some of the mind-bogglingly irrational policies that pass that test, it’s very badly named. It’s more of a “any possible pretext” test…

Maggie does a pretty good job of establishing that this policy passes the test the courts pretend to be applying to it. You want sexual orientation to be a suspect classification that invokes strict scrutiny, I think you need to change some state legislatures’ minds about ratification of the ERA.

84

abb1 10.19.05 at 5:37 pm

I wasn’t talking about gay marriage—I was talking about government getting entirely out of defining marriage as something I don’t think will happen in my lifetime.

This idea so simple, so logical, so ‘cut the gordian knot’ that I think it will happen before (or rather instead of) gay marriage.

85

BigMacAttack 10.19.05 at 5:42 pm

‘Not to put to fine a point on it, but I don’t give a rat’s ass about “approval.” I want equality under the law.’

Which civil unions could provide. But you don’t want civil unions.

86

Chris W. 10.19.05 at 5:45 pm

Back when the civil union bill that has now become the PACS was on the table in France, the only major mainstream intellectual — i.e. outside the circle of gay/lesbian activists — who argued for simply allowing same-sex couples to get married was the sociologist Éric Fassin. With admirable clearness, he made the point that has been made by matt above (comment N°3). I’m paraphrasing: It is entirely possible to define marriage as being about a society organising procreation. In this case, it would only be logical — or indeed necessary, in the spirit of equality — to require a fertility test and a statement of intent to procreate. If one of the parters fails the fertility test, the certificate of fitness to adopt must be delivered before the marriage. And, why not, dissolve any marriage that hasn’t led to children (adopted or not) within some time frame.

This still wouldn’t address the situation of the increasing number of same-sex couples who bring up children: by this logic, they ought to be allowed to marry.

If, however, we accept that marriage is about people falling in love and wanting to spend their lives together — however long this actually holds — then all the arguments about same-sex marriage crumble.

I’m personally not attached to the idea of marriage; actually, more repelled by the sexist baggage that institution carries. But I don’t believe in “separate but equal” provisions. Now even some of the French politicians accept that same-sex partners just don’t have the same options as other-sex couples.

Oh, and two sisters can’t contract a PACS in France. Some Socialists threw this idea around — just like the one that the State has a putative obligation to “protect the symbolic order”, which I found mind-boggling — to make it clear they weren’t for gay marriage, no, no.

87

Uncle Kvetch 10.19.05 at 6:10 pm

But you don’t want civil unions.

I never said that, BMA.

88

Uncle Kvetch 10.19.05 at 6:20 pm

Oh, and two sisters can’t contract a PACS in France. Some Socialists threw this idea around—just like the one that the State has a putative obligation to “protect the symbolic order”, which I found mind-boggling—to make it clear they weren’t for gay marriage, no, no.

Thanks for the clarification, Chris W. I remember hearing at some point a year or 2 after the PACS was instituted that a majority of those getting “PACSed” were heterosexual couples who didn’t want fully-fledged marriage. Can you corroborate?

It’s always been interesting to me how much the SSM/PACS debate in France revolved around child-rearing and adoption issues, to a far greater extent than in the US. I remember talking to a group of young women in their final year of high school who told me that they loved “debating” political issues like the PACS among themselves. Two were all for the PACS; the other one was ambivalent because of the need for children to grow up with male and female role models in the home. When I asked them to set the issue of children aside and consider the PACS solely in terms of allowing a committed couple to have access to the rights of a married couple, they gave me a “well, duh” look and one of them said “Well, we’re all for that–who could possibly be against that?”

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Clayton 10.19.05 at 6:51 pm

Rubbish. Absolute rubbish. Why do we let people get away speaking as if there is such a thing as THE purpose of marriage? Why do we let people get away speaking as if when it came to marriage there was such a thing as the question of justification? If I’m lucky enough to marry someone for money during my very short stint in Dallas (a secret plan of mine, shhhhhh), I’ll never have to make a case that there’s something in it for Gallagher or anyone else.

90

Ampersand 10.19.05 at 7:17 pm

‘Not to put to fine a point on it, but I don’t give a rat’s ass about “approval.” I want equality under the law.’

Which civil unions could provide. But you don’t want civil unions.

Civil unions aren’t equality under the law. First of all, on many technical levels (social security inheritance, being able to travel to other countries and have your legal status recognized, etc) civil unions simply are not the same as marriage.

Second of all, civil unions and marriages are no more equal than black water fountains and white water fountains are.

91

Chris W. 10.19.05 at 7:23 pm

@uncle kvetch: I couldn’t find any numbers quickly and while I think they are being collected (in France, with its idea of “republicanism”, this isn’t a given), they haven’t been widely publicised. I know that the PACS serves as a sort of antechamber of marriage for young other-sex couples. From my vague memory, you’re right about there being more than same-sex couples. Which would be logical, given that there are only 5-10% of us, estimated over the thumb.

And your conversations with high-school students reflects the public mood here, even though the debate has evolved of course. The latest numbers, quoted on “Marions les homos”:http://marionsleshomos.hautetfort.com/archive/2005/09/13/sondage-les-francais-favorables-au-mariage-gay.html, puts approval of same-sex marriage at 50% (vs. 43%), but adoption (and, I presume, access to artificial insemination for lesbians) is only approved by 36% (vs. 58%).

“Children need a father and a mother” is repeated like a mantra, on both sides of the political spectrum (though less often on the left). Luckily, some home-grown studies of children who grew/are growing up in same-sex households are beginning to emerge. (Which show what we know: that the kids do as well or better than those in traditional homes.)

Timberites, may I respectfully suggest you consider looking into the “subscribe to comments plugin”:http://txfx.net/code/wordpress/subscribe-to-comments/? That would be a nice feature.

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snuh 10.19.05 at 8:26 pm

the latest:

Gay marriage advocates want to use the law enforce a new social narrative about gay people, whose main thread is: there is no difference between gay relationships and other people’s, and anyone who says otherwise is a bigot.”

of course, everyone knows there is a difference between “gay relationships and other people’s.” and that difference is: gay relationships are all icky.

93

Chris W. 10.19.05 at 9:10 pm

re: the latest part, quoted by snuh, N°92 — Holy cow, what a mess of non-sequiturs.

I agree with the sentiments above: why is anyone taking that blog seriously? As a non-US non-academic, I’ve never understood why bloggers I like and find enlightening keep quoting Volokh. I tried to give them another change, but no way.

94

nick s 10.19.05 at 9:35 pm

Then we would be literally trying to destroy marriage as an institution, just as SSM opponents say we are.

Or, alternatively, saving it from its ungodly incarnations. I’m pretty certain that all ‘drive-through & Elvis’ weddings in Las Vegas are conducted by ordained ministers. Hence the response: “Why should Christian ministers be marrying drunken pop singers on New Year binges?”

95

Z 10.20.05 at 8:42 am

Jyst a clarification on 88. Two brothers or sisters can’t PACS, but contrary to what Chris wrote, it was the right which suggested the idea, in part of an amendment battle (our own variety of filibuster). So they suggested both that PACS could and could not be between brothers and sisters.

The PACS is more common between heterosexual couple, as it should be from trivial demographic reason. Same-sex mariage is not legal yet, but should be within 10 years at most, if I do not misunderstand my country too much. Anyway, gay couples are already getting married in neighboring Belgium. Also, two women were granted full parental authority over the children of one of them (they used a very tricky legal disposition to achieve that).

Oh, and of course (from my French perspective), mariage in France can only be performed by a “Townhall officer”. Anything with the word God in it has no official value.

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Uncle Kvetch 10.20.05 at 9:35 am

Oh, and of course (from my French perspective), mariage in France can only be performed by a “Townhall officer”. Anything with the word God in it has no official value.

And France will always have a special place in my heart for that reason, among many others. 8^)

97

Patrick 10.20.05 at 2:20 pm

I would like to say thank you to the author of this piece for twofold reasonings. Number one, for denying me a chance for marriage. I am one of the lucky ones who have been graced with the dishonorable disorder of inability to reproduce. I can’t have kids, and I can’t stand it. But I still have the ability to love. Does this disorder make me less of a citizen of this country, let alone a person? Hell, while were at it, why don’t you take away my right to vote, or even my right to own land. Bigotry is what gets this country, as well as individuals in trouble. For whatever you reasons you have to discriminate against someone else for there belief system, traditions, race, etc. is so arrogant it makes me sick. We have all been born under the same sky, therefore we should all have the same respect for human descency and for each other. It puts us back over 150 years, when we should be ahead 150 years with everything we have to offer today. Why do we still insist on begruding others on things that they can not control? Even if they can control it, our diversity in this world is what makes us who we are. If we were all alike, same walk, same talk etc. then we would be extremely narrowminded. Without the ideas of those who think differently then us, is what creates what we have today. For example, our forefathers created a government unlike any other government that was known to man back then. They did not think like anyone else did. They thought progressively and due to that fact, we are granted the rights and privilages that we have today.

The second reason is the fact that you compare our marriage system to that of the inate sexual actions of the animal world. “Marriage is only for reproduction.” Well what happens if we reverse that statement and see where it takes us. “Reproduction is only for marriage.” Hmm… if thats the case, then I have an idea. Why don’t we get a couple of rabbits together, dress them up in a tux and gown and have a ceremony for them. Wrong answer. Humans are unlike the animalistic world in many ways. And if you believe that this is false, then you should go sleep in a tree or have a doghouse be your shelter (although my girlfriend thinks that would work for me just fine, she puts me there enough). We are much more advanced then that of your pooch who lies in the middle of the living room and licks his boys all day long. We have the gifts of love, compassion, lust and getting ladies intoxicated so we can take em home. Hehe just kidding. So why would we believe that the primative belief that we are only supposed to love to reproduce? First off, it takes away from the joy of marriage. There would be no need for a large ceremony, or engagement or anything for that matter. You mine as well, be like cavemen, beat the women over the head and bring em back to your cave, of course after saying your vows. Now granted somepeoples ideas of marriage are a little ignorant and strange. We have Anna Nicole Smith and Jennifer Lopez to blame for that.
But I believe that it is the love that makes our marriages special, and for people to say that love can not occur between two people of the same gender is completly inaccurate.

98

Arne Langsetmo 10.20.05 at 3:35 pm

IF MG wants to argue for the social utility of OSM, she has to show (but fails) that SSM would in any way interfere with that societal good. No one is proposing outlawing OSM.

Cheers,

99

RP 10.21.05 at 2:06 pm

I have no doubt that the Maggie Gallaghers of the world would be pleased as punch to deny marriage to childfree atheists like my husband and I. What sort of heathen prefers an engagement vasectomy to an engagement ring, after all!

But would they really be happy telling my aunt that she couldn’t remarry at age 80? Ah, now there’s a popular position: marriage only allowed if half the couple still menstruates. Perhaps there can be tests.

100

Mill 10.21.05 at 8:32 pm

I don’t think I’ve ever read a comment thread where the phrase “elderly spinster” was used so earnestly or so much. So this is what blogging would have been like in the 1800s.

101

Rev. Manny Gregorius 10.22.05 at 12:19 pm

The first time I saw Rev. Gallagher preaching on television, I thought she was some kind of lesbian activist/agitator because she looked/looks so much like a diesel dyke. Boy oh boy was I surprised to eventually learn how much she hates the homos! and how she has made it her life’s work to increase the discrimination, hatred, and violence that they face because of the “lifestyle” they’ve “chosen.” I have a suspicion that her hatred of the homosexual agenda people might stem from the fact that she’s been mistaken for a lezzie so many times in her lifetime, poor thing. Rev. Gallagher really needs a “Straight Girl for the Lezzie Reverend” makeover if anyone does. Thank you.

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joemono 10.22.05 at 1:48 pm

It’s only a matter of time before same-sex couples can have their own genetic children, anyway.

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