1. Marriage, as a
legal matter, is a civil contract between two adult individuals.
I want to start off this rant on marriage from this basic
conclusion. I see it as, ultimately,
controlling of the entire contemporary debate over same-sex marriage, in the
same sense that it could have been held to be controlling in past debates about
interracial marriage. Marriage is a
civil contract entered into by two adults, with standing to enter into legal contracts,
conferring on both a set of privileges and responsibilities relative to the
accumulation and distribution of property/wealth and income and the
guardianship of mutual biological or adopted offspring. In this sense, marriage is only
tangentially related to sexuality and human reproductive processes, by
virtue of the connection between the civil marital contract and guardianship of
children. By contrast, legally it has nothing
whatsoever to do with love or with a broader institution of monogamous pair
bonding or with any other social, physiological, or psychological process that
we customarily associate with intimate interpersonal relationships. Beyond its connection to the guardianship of
offspring, it is generally no different than civil contracts between two
individuals regarding the transfer of ownership rights to real estate, the
extension of credit/financing to purchase of goods and services, or adoption
agreements on non-biologically related children. The common thread between each of these contractual forms,
mediated by the state and/or by private third parties, is that two
parties are brought together by mutual consent to enter into an agreement by
which each party will accept certain legally enforceable responsibilities and
obtain certain legally enforceable privileges.
For that matter, the sort of explicit contract apparent in
marriage is no different, in its generalities, than the implicit
contract between an employer and employee in an at-will employment context, at
least under circumstances in which the privileges and responsibilities of the
two parties have not been legally circumscribed by, say, child-labor laws.
Having
argued that, as a species of civil contract, marriage is no different from any
other civil contract entered by two mutually consenting adults, in its
particulars, a marriage contract convey a long list of legally enforceable
economic and non-economic benefits, such as joint access to insurance policies,
joint benefits from annuities and government sponsored entitlement programs
(e.g. Social Security, Medicare), and joint parental rights in making decisions
regarding the care of biological and non-biological/adopted offspring. In a more general sense, married individuals
enjoy the benefits apparent in pooling two income streams, facilitating
enhanced accumulations of property and, especially, real estate. For these reasons, legal reinterpretations
of marriage enjoy a practical relevance that transcends that of other civil
contracts.
There are
clearly practical issues that need to be considered in regard to the
individuals entering into a marriage contract.
First, at what age should individuals be capable of entering into
marriage? In this sense, I would
question the larger conceptual issue of an “age of majority” as it pertains not
only to marriage but also to voting rights, military service, criminal
prosecutions, and a long list of other issues.
There is something distinctly arbitrary in the conclusion that
individuals, at the age of eighteen, should be legally capable of assuming
responsibility in these areas. We need
more practical criteria to discern when an individual is capable of assuming
adult responsibilities, which might entail some measure of legal determination. On the other hand, lacking the legal specification
of any other meaningful criterion to judge the practical/literal maturity
of an individual, we are left with an age-based criterion.
Beyond age,
there is, additionally, the practical question of why just two
individuals? Why not incorporate marriage
contracts involving three or more individuals?
What about polygamous and polygynous (i.e. one male, multiple females)
marriage contracts? To my knowledge,
polygamous and polygynous marriages are not allowed anywhere in the
U.S. At least in certain circumstances,
moreover, entering into a marriage contract with another individual while
another marriage contract with another individual remains in force (i.e.
bigamy) may be criminally punishable, especially if the bigamous
individual enters into the second marriage contract without the knowledge of
one or both spouses. With regard to my
own state (Massachusetts), no civil or criminal penalties appear to be
specified in the case of bigamy, other than the legal voiding of the second
marriage (I may be mistaken on this, but you are welcome to check: http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter207). In any case, the issues involved in civil
marital polygamy and polygyny deserve serious consideration as matters of legal
policy. Precisely, is there a good
reason why a political jurisdiction should not want to allow the simultaneous
civil marriage of more than two individuals? Admittedly, I do not know what the answer is to this
question. It is a point for debate,
especially with regard to issues concerning parental rights. As I suggest above, I can see nothing, in
and of itself, connecting the civil contract of marriage to monogamous pair bonding. However, my meaning above concerned monogamy
as a sexual practice rather than monogamy as a civil/legal
contractual condition. Insofar as
marriage is just a contract like many other contracts, I cannot see why
polygamous (multiple males, multiple females) marriage contracts should be
prohibited. I do not like the idea of
polygyny for the simple reason that harem building connotes, to me, a
degrading aspect toward women. On the
other hand, polygamy configured in terms of some sort of communal marriage
arrangement between multiple individuals might hold some merit (e.g. to
establish extended, non-biological claims to parental rights by
surrogates). Like any other contractual
legal matter, this is a policy question that should be resolved democratically
through the legislative or general referendum process. In general, marriage contracts are
creatures of public policy, open to democratic redefinition at the whim
of a polity – there is nothing fixed or transcendental about the
marriage contract, the responsibilities it imposes, or the privileges it
confers.
2. Marriage has
NOTHING to do with religious/sacramental matrimony.
In asserting this conclusion, I want to underscore the point
that allowing religious ecclesiastical officials to sign legal documentation
certifying that two parties have entered into a civil contract of marriage, upon
completion of a matrimonial ceremony, is, in my view, a terrible mistake,
promoting the conflation of a civil contract with a religious ritual. This conflation is at the root of
contemporary debates over same-sex marriage that could be, to a significant
extent, resolved if civil marriage documentation strictly required the
written certification of a public officials (e.g. a municipal clerk,
judge, or magistrate). It is one thing
for the Catholic Church to refuse to allow priests to celebrate the sacrament
of holy matrimony for two same-sex individuals. It is a wholly different matter for a city
clerk or magistrate to disallow the same two individuals from entering into a
civil marriage contract, under the legal terms outlined by a state. The former case implicates the
constitutional liberty of the Catholic Church to decide, based on theological
principles, who can participate in sacramental matrimony. The latter case is a matter of civil law,
subject, at least in some way, to state or federal constitutional provisions
governing the ability of individuals to freely enter into civil contracts. To the extent that, practically speaking, we
conflate holy matrimony and the civil marriage contract, the Catholic Church is
quite right to question whether its religious liberties will be violated in
states where same-sex individuals enjoy permission to enter into marriage
contracts. Clearly, there needs to be a
practical distinction between unions sanctified “in the eyes of God” and
contractual agreements between consenting adults, legitimated by public
officials in the eyes of legally competent witnesses. Ecclesiastical officials should not be capable of officiating
over processes through which a marriage contract is publicly legitimized.
Having made
this point, the present “crisis” in the institution of civil marriage (i.e.
rates of divorce over fifty percent nationally) may, likewise, reflect a crisis
in the religious/sacramental institution of matrimony (i.e. increased requests
for annulments of matrimonial unions).
This is something that churches need to take seriously, but same-sex
civil marriages do not constitute the root cause of such a crisis. Rather, any problems with matrimony are
innately intertwined with the role of religion in the everyday lives of
followers, their comprehensions of the responsibilities entailed for partners
within the institution of holy matrimony (e.g. toward sexuality, reproduction,
and the raising of children), and the interaction between religious/spiritual
living and the everyday compulsions of economic processes (e.g. work,
consumption), non-religious cultural processes (e.g. the effects of mass
media), and the physical and emotional needs of involved individuals (e.g.
sexual desires). Religious
organizations need to address their problems with holy matrimony among their
followers to the exclusion of broader political discussions on civil
marriage.
In these circumstances, religious
thinkers might be on to something when they argue that the institution of
same-sex civil marriage undermines the institution of holy matrimony
(incrementally), but only insofar as it is contained within a broader everyday
cultural reality lived by the adherents to religion (i.e. incongruities between
scriptural admonishment forbidding same-sex relations and the presence of
constitutional liberties to enter into same-sex marriage). It can, further, be argued that, insofar as
civil society is constituted, in part, by the free practice of religion and
that religious practices shape the views of individuals toward public policy,
there is no practical way to separate church from state. I am going to concede this point – the
boundary line between church and state is invariably a question to resolve by
means of democratic deliberation and, in no sense, a rigorously enforceable
constitutional matter (as if there were any rigorously enforceable
constitutional matters!). On the other
hand, if we do not begin discursively from the proposition that church and
state exist as distinct institutions, then we risk collapsing theological
questions into political policy matters in a way that threatens the religious
liberty of the larger polity. It is
in this sense that I mean to argue that we need to separate marriage from holy
matrimony in order to prevent the two institutions from contaminating each
other to the detriment of both.
3. Love is
distinct from sexuality, sexuality is distinct from processes of human
reproduction, human reproduction is distinct from functional parenthood, and
all four are distinct from the contractual institution of civil marriage.
My purpose so far in this rant has been to strip the
institution of civil marriage as bare as I can! My initial conclusion, for example, sought to paint marriage as
something akin to a business contract – a piece of paper conferring a set of
legally enforceable privileges and exacting a set of legally enforceable
responsibilities between two consenting adults. States can enforce compliance with a set of defined standards
attached to the institution of marriage – they cannot enforce the notion that
there will be “wedded bliss.” Love,
however it is defined, enjoys no connection to the institution of civil
marriage. Rather, love, as an emotional
process characterizing the relationship of two individuals, might be a motive
for entering into marriage, especially in relation to the intention
of the individuals to mutually engage in parenthood/guardianship of children,
but there is no meaningful way for a state to stop two mutually consenting
adults who do not love each other from entering into a marriage contract for
reasons other than an emotional connection and a emotionally-centered
commitment to sexual monogamy.
Moreover,
the enormity of the concept of love implies that it is irreducible to
relationships that have a sexual component.
Some emotional relationships characterized by love between individuals
involve sexual processes and the satisfaction of sexual desires, but others
(e.g. some child-parent relationships, “platonic” friendships) generally do not
involve sexuality. Expanding on the
concept of sexuality and sexual relationships, it is conceivable that certain monogamous
sexual relationships between individuals do not involve love (e.g. individuals
in arranged marriages), while, in other cases, relationships involving
mutually acknowledged polygamous sexual practices by two individuals
might be characterized by love (e.g. a sexually open relationship
between two individuals inside or outside of a legal marital or practical
cohabitational bond).
Going
further, sexual practices are irreducible to heterosexual pairings. It is at least conceivable to graft the
sorts of relationships between love and monogamous or polygamous sexual
practices onto homosexual practices.
Taken as a whole, sexual practices are, thus, irreducible to biological
human reproductive processes, on the one hand, because homosexual practices
eliminate the possibility of human reproduction without a heterosexual
surrogate relationship, and, on the other hand, because access to and
utilization of reliable birth control technologies functionally separates
heterosexual practices from conception through coitus (among the wider range of
possible, non-coital heterosexual practices).
In any such case, lacking the utilization of birth control technologies
to inhibit a pregnancy, it should be self-evident that the incidence of
biological human reproduction bears no connection to the institution of civil
marriage. Teenagers who possess no
capacity to legally enter into a marriage contract often experiment with
unprotected heterosexual activity with the obvious possible consequences. “Abstinence only until marriage” constitutes
a political position, and a distinctly unpopular among young adults in the
U.S., rather than a legally enforceable policy to restrict heterosexual
practices connected to human reproduction to marital relationships.
Finally, there is no axiomatic
connection between human reproduction, as a biological process culminating in a
live birth, and the processes of parenting, guardianship, and nurturing of
children. If most legal guardians of
children in the U.S. are simultaneously biological parents, the institutions of
foster parenting, legally-sanctioned adoption, and, even, stewardship of minors
by state agencies tasked with guarding the welfare of children against negligent
or abusive parents facilitate the creation of a conceptual distinction between
human reproduction and parenting. This
conceptual distinction is important in approaching the larger relationship of
parenting and civil marriage. Following
the arguments of the defenders of traditional marriage (e.g.
ProtectMarriage.com, one of the private organizations defending California’s
Proposition 8 in Hollingsworth v. Perry, currently being adjudicated by
the U.S. Supreme Court), an underlying purpose of civil marriage is to
reinforce the traditional biological conceptions of parenthood (one father, one
mother). Acknowledging that there is
abundant evidence supporting the relevance to personal development of having
multiple nurturing parental resources in the lives of children, there is no
axiomatic connection between the existence of a marriage contract (i.e. a piece
of legal documentation conferring privileges and responsibilities on two
mutually consenting adults) and the functional performance of parental
nurturing by two individuals, with or without a biological connection to the
children for whom they are acting as guardians and mentors. While I must confess that I have not
significantly researched the subject, it is unclear to me that there is any
fundamental distinction in parenting skills or outcomes for cohabitational
partners with or without a marital contract beyond outcomes resulting from the
existence of disproportional parental privileges to non-biologically parenting
figures in mixed relationships (i.e. one biological parent plus a
non-biological partner/spouse). (For an alternative perspective on this
subject, see Moore et al. “Marriage from a child’s perspective: How does family
structure affect children, and What can we do about it?” at: http://www.childtrends.org/files/marriagerb602.pdf. This article has been used as an argument
against gay marriage and gay parenting, contrary to the intentions of the
authors. Whatever theses intentions
are, I do not find their argument intrinsically convincing.)
Moreover, the comparative value to
the personal development of children of divergent heterosexual, homosexual, or
other (e.g. polygamous/communal) parental structures appears to be an open
question. Citing a number of different
research studies on gay and lesbian parents, Pappas (see “Gay Parents Better
Than Straight Parents? What Research Says,” at: http://www.huffingtonpost.com/2012/01/16/gay-parents-better-than-straights_n_1208659.html)
suggests that adoptive homosexual couples are often more willing than adoptive
heterosexuals to adopt children across racial groupings, children at older ages
where placement is often difficult, and children with special physical or
emotional needs. She, likewise, cites
evidence that children of gay and lesbian couples demonstrate no significant
developmental differences from children of heterosexual couples, with the
possible exception that children of homosexual parents tend to display greater
empathy and tolerance than children of heterosexual couples. Pappas’ evidence seems supported, at least
in part, by a 2004 policy statement from the American Psychological Association
(APA) (see “Sexual Orientation, Parents, & Children,” at: http://www.apa.org/about/policy/parenting.aspx),
which states that “the results of research suggest that the development,
adjustment, and well-being of children with lesbian and gay parents do not
differ markedly from that of children with heterosexual parents.”
Being fair to the other side,
contrary perspectives on parenting by gay and lesbian parents have been
academically formulated and utilized as arguments against both gay
marriage and extension of privileges to adoption of children for gay
couples. Most recently, an article from
the New Family Structures Study by University of Texas sociologist Mark
Regnerus (see “How different are the adult children of parents who have
same-sex relationships? Findings from the New Family Structures Study,” in Social
Science Research (41:4, 752-770), at: http://www.sciencedirect.com/science/article/pii/S0049089X12000610)
suggests that, under a range of quality of life indicators measured by
dichotomous, continuously distributed, and event-count outcome variables, adult
children of gay or lesbian parents fair worse than adult children of “intact
biological families” (i.e. one biological mother, one biological father),
especially children of lesbian mothers.
Proceeding from these results, Regnerus advances the conclusion, in
relation to the analysis of his data sample, that family structures are
pertinent to outcomes in the development of children, that intact biological
families appear to provide the best possible family structure relative to the
development of children, and that declines in the share of intact biological
families will heighten social dependence on “public health organizations, state
and federal public assistance, psychotherapeutic resources, substance abuse
programs, and the criminal justice system,” by implication inflicting tangible
social costs. For the simple reason
that his conclusions appear to not only depreciate the value of parenting by
gay parents but, more importantly for my purposes, establish a definitive
functional connection between the marriage contract and parental outcomes, I
want to consider some problems with Regnerus’ argument.
First, it is apparent that various
organizations opposing same-sex marriage have employed Regnerus’ argument in
order to argue that a connection exists between the passage of state laws
defining marriage as a union of one man and one woman and the interest of
states in supporting intact biological families as the best possible family
structure for child developmental outcomes.
Precisely, Charles Cooper, the attorney representing proponents of
California’s Proposition 8 in Hollingsworth v. Perry, employs this
connection as a basis against which to argue that, in the lexicon of
constitutional law, a rational individual might conclude that a linkage
existed between the maintenance of a gender specific definition of marriage and
the interest of states in protecting the welfare of children and that,
against this standard of rationality, California voters were entitled to retain
a gender specific definition of marriage as a use of power emanating from their
capacity to exercise general self-government through the referendum process. I want to consider this constitutional issue
further below, but for my purposes here, the problem concerns the
partisan/rhetorical use of Regnerus’ analysis.
NO statistical argument worth
being published is value neutral.
Any analyst who assembles cross-sectional, time-series, or panel data
and manipulates them through an ordinary least squares regression, a binominal
probit analysis, or a vector auto-regression analysis is doing so because she
has some partisan agenda to uphold and wants to put numbers together to smash
her argument over the heads of her opponents.
I do not know anything about Regnerus’ politics, but I can only guess
that he is a political conservative, probably connected to the cultural/religious
right, and supportive a priori of traditional conceptions of
marriage. Notwithstanding the caveats
he posits in his analysis regarding planned families by homosexual couples and
their potential to achieve positive developmental outcomes for children, the
responses by adult children of homosexual parents that form the basis for his
analysis are overwhelmingly taken from individuals from broken heterosexual
marriages where one parent subsequently experimented with same-sex
relationships. Regnerus' data set includes, by his own admission, almost no adult children raised by homosexual partners in a planned familial context. As the American
Sociological Association (ASA) notes in its amicus curiae brief in Hollingsworth
v. Perry (see “Brief Amicus Curiae American Sociological Association in
Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor”
at: http://www.asanet.org/documents/ASA/pdfs/12-144_307_Amicus_%20%28C_%20Gottlieb%29_ASA_Same-Sex_Marriage.pdf),
this analysis does not, in any meaningful way, address the outcomes of
parenting by actual same-sex couples (i.e. situations where a same-sex couple
adopts a child or raises a child conceived through in-vitro fertilization) and
the methodologies employed by Regnerus (i.e. separating children from intact
biological families from children of opposite-sex unions resulting in divorce,
step parenting, and single parenting) generate misleading conclusions about the
value of same-sex parenting relative to heterosexual parenting.
Acknowledging the relative validity of both Regnerus’
position (in its own terms) and that of ASA in contesting his argument, the
overall question here concerns not the truth of either side but the
persuasiveness of divergent arguments from divergent partisan
perspectives. For my purposes, the ASA
position carries the day in this regard – the capacity of two (or more)
individuals to serve as mutually loving and nurturing parents, mentors, and
guardians (whether unified by a marriage contract or not) in the lives of
children trumps any requirements for biological connections or gender
specificities in the legitimization of marriage. In this regard, moreover, the actual existence of a marriage
contract is secondary. The grand
arbiter of both positions will, however, be a majority on the U.S. Supreme
Court (at least with respect to the final judgment in Hollingsworth v. Perry).
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