Saturday, March 11, 2006

S-squared, Sykes and same sex marriage, pt. 3

This is the hard part.

One of the reasons that it is hard is that we often think that recognizing the moral equality of, or even "tolerating" a class of people means assuming that they are the "same." This was the mistake of early feminism.

Whether homosexual relationships are the same as heterosexual ones is an empirical question, not a moral proposition. Homosexual relationships can be significantly different from heterosexual ones and yet have the same moral standing, just as men and women can differ in fundamental ways and have the same moral worth.

But just as the differences between men and women can, at times, justify differences in treatment of the one or special accommodations for the other, so might differences in homosexual and heterosexual relationships require differences in legal treatment.

Before considering how potential differences might affect the nature of marriage, we should acknowledge that it is not a sufficient response to these arguments to say that you know "some" gay couples for which the posited differences do not apply. These arguments turn on the general rule, not the exceptions to that rule.

Nor is it correct in assessing the objections to gay marriage to say that "two guys getting married won't affect my marriage." That's answering the wrong question. The question before is whether gay marriage will affect the institution of marriage. Not necessarily (not probably) your marriage, but marriages to come.

Having said that and repeating that I am still making up my mind, here is my best understanding of the argument that it will.

Maggie Gallagher says that if you change the public meaning of a social institution, you inevitably change the institution itself. If you extend marriage to relationships that are not fundamentally procreative, you will reduce the importance of procreation. Having children will no longer be the key purpose of marriage and the idea that mothers and fathers are the norm for children can no longer be advanced by the state, but, in fact, must be dismissed as discriminatory.

Before you dismiss this as scare-mongering, it is really no different than what a lot of advocates of same-sex marriage say. In the article that I linked to, Gallagher cites to a number of such people who argue either that marriage "has changed" or, if we permit same-sex unions, that it will. The only difference is that they think this is a good thing.

But maybe it isn't. If marriage is only about mutual affection and support; if it must be made to "fit" same-sex relationships, it seems naive to think that there will not be pressure to change it. Here are some possibilities.

Pressure upon the rule of two. This is not an argument that gay people prefer "open" or "triadic" relationships. But if marriage is not about a mother and father, then why should it be limited to two people (of whatever sexuality)? There are two ways in which this pressure might exert itself.

The first is a claim for consistency. Proponents of same sex marriage argue that they are not advocating for polygamy (although some are). But if marriage is intended solely to honor and support the relationships of mutual affection and support that people choose, what is to prevent extending marriage to polyamory or "ethically nonmonogamous" relationships?

The second way relates to the way in which same-sex couples have "their own" children (i.e., the natural child of one of them). They have to "bring in" a third party and they may well want - and the third party may demand - an ongoing relationship. This can happen for infertile heterosexual couples as well, but it remains an aberrational situation, not the norm that it might become for same-sex couples who wish to have children.

This may result in all sorts of pressure to change the rules of marriage to accommodate, if not more than two "spouses," then more than two parents.

It won't do to say, well, we already have multiple parenting situations as the result of divorces among heterosexual couples. For advocates of a marriage culture like Gallagher, that is a problem to be solved, not a principle to be extended.

Pressure on financial interdependence. Advocates of same-sex marriage argue that it is wrong to deny same-sex couples the "benefits" of marriage. This is a curious description of the financial consequences of marriage which involve as many burdens as benefits. One of the things the financial rules surrounding marriage do is burden the financially stronger partner for the benefit of the weaker. These rules are grounded in assumptions about what works best for couples raising children. If you apply them to relationships in which raising children is not the norm, then there is a potential "misfit" between those rules and what the people who are subject to them are likely to want.

Proponents of same-sex marriage don't deny this, but say that only those gay couples who "want" these burdens will choose to assume them by marrying. I'm not so sure.

I think it is undeniable that much of the push for gay marriage is about "sanctifying" these relationships. Much, although not quite all, of the claimed practical disabilities of not being married can be resolved by contract. Gay couples, understandably, want the legal imprimatur which says that their relationship is just as good as any other. But once these burdens begin to be felt - without the corresponding justification present in heterosexual marriage - there is likely to be pressure to change them.

Pressure on the notion that "mother" and "father" are best. I don't want to get into a battle of social scientists, but it is far from clear that we can abandon, for all time, the idea that, whenever possible, children ought to be raised by their natural fathers and mothers and that the parental rights of those natural mothers and fathers ought to be terminated only in the rare cases. While advances in technology and increased tolerance of alternative families have undercut this presumption, that is a rather recent development - almost entirely within my memory. I am not prepared to say that some of this may turn out to be an experiment that didn't work.

More fundamentally, I do not think we can say with any certainly that there is not something about mothers and fathers - a parent of each sex - that is better for children. We have very little experience with the alternative.

But if same sex partners - who can never be their children's natural mother and father - are allowed to marry, how will the state ever be able to encourage the natural parent - or even "two sex parent" - family? Won't private persons and churches who argue for the proposition that children need mothers and fathers be denounced as bigots and homophobes? Are we really ready to say that the way in which children have generally (I don't want to hear about remote tribal societies or decadent European nobility) been raised since about the dawn of man is no longer preferable? I sure haven't seen the evidence that proves that. I don't see how such evidence could even exist.

There is a bit more of this (and then we have to consider whether all of this is likely and what to do about the second sentence), but this is all I have time for now. I will continue the post that won't end later.


Anonymous said...

The equivalent argument on the other side might go something like this: As gay couples become more and more established in the nation's civil, public, and social fabric, and as an ever increasing number of countries extend marriage equality, the structural and social inequalities created by barring gay couples from civil marriage will become more pronounced. This will lead to a growing rift between the ideals upon which we base our national identity--freedom, liberty, and justice for all--and the realities of our daily lives. Over time, the denial of marriage equality will lead to America becoming increasingly un-American, and the distinctiveness of nation will fade.

Both your argument and that one, it seems to me, are similarly speculative.

Moreover, I think you base much of your speculation on shaky ground.

First, I disagree with what you consider to be the "rules" of gay couple's lives, which I take to be much more similar to the "rules" of nongay couple's lives.

Just as with infertile heterosexual couples, the norm for gay parenting is to exclude the "third party," most commonly an anonymous donor (in part because most gay parenting is in lesbian-headed families). Even in the case of open adoption, strict guidelines established beforehand minimize the role of biological parent. Here, the "rule" of gay couple's desires to become parents is similar to those of nongay couples--to raise a child nurtured by the strength and love two united people can extend. This is what schoolmates, teachers, neighbors, coworkers see; this is the public reality of gay lives; and this is what would exert normative pressure, if any, on culture--not the private facts of a child's conception.

Similarly, the existing "rule" for gay couples is to take care of each other, financially as well. And the status quo of lesbian and gay couples lives is that we currently take on the burdens and responsibilities of caring for each other and each other's aging parents, yet also find the state impeding our ability to do so. If we do this in the face of government interference, why would we become less financially interdependent once that interference has been removed?

Now, some smaller objections.

The first part of your polygamy question seems to be of a different piece than the rest of your argument--a legal argument rather than a social pressure one. And there are numerous rational basis justifications for excluding polygamous groups from civil marriage, none of which apply to gay couples. For one, it really would change existing marriages, which would find their legal rules of engagement suddenly altered. For another, one needn't be a game theorist to realize that legally recognized polygamous unions would cause havoc to descent upon our child custody and divorce laws. Extending civil marriage to gay couples requires the law only to change two words, "husband" and "wife."

Finally, though you claim not to want to discuss it, the social science does emphatically assert that children raised by gay couples are as healthy, adjusted, and wonderful as children raised by heterosexual couples. But more to the point, your final argument seems based on a real pessimism about the state, strength, and durability of heterosexual love and parenting. Chin up! Have a little confidence here! My suspicion is that, when gay couples have access to civil marriage licenses, heterosexuals will continue to comprise the vast majority of marriages, continue take their marriage vows seriously, and continue to love and cherish their children. If as you argue, the heterosexual family is the "natural" one, it hardly needs encouragement from the government. Seems to me it'll keep on doing fine on its own.

Of course, all of this is largely not the point in our current debate. Voting "no" on the ban won't change existing marriage laws. And the ban is about far, far more than marriage. This debate is about whether our constitution should single out gay families and deny them any sort of state recognition at all.

Dad29 said...

What Todd gets correct is that a state 'licensing' of gay marriage will not likely change 'regular' marriage numbers.

What Todd avoids, however, is the question "why." The answer is that marriage is emphatically NOT defined by the State, nor by lawyers. (Apologies to the Shark half of S&S.)

All the State has done is Xerox the law governing marriage, (which pre-exists Xerox machines and writing instruments as well...)

As to the relative social health of children raised by gay couples, what Todd demonstrates (and I will assume that his facts are spot-on) is that children are remarkable little critters. Ummmnnnhhh, should I say "natural law" again?

This "inscribed in your hearts" language of that famous Jewish guy, Paul, meant something.

Anonymous said...

The answer is that marriage is emphatically NOT defined by the State, nor by lawyers.

If the "marriage" dad29 seeks to preserve is independent from state law, then he should have no problem with the state allowing gay couples to enter into civil marriages. These "marriages" would remain for him forever independent from the "real" institution about which he most cares.

Also, dad29's blog features language about gay people ["pack fudge"] that would get him kicked off of the playground, yet he remains on Sykes' blogroll. Is this the kind of language Sykes would accept as civil and respectful?

David Schowengerdt said...

At best, this is all a bunch of speculation. Although I guess this is your way of working through this.

For all of us who obviously have way too much time on our hands, I still say why don't we just see what happens if gay couples can marry? It's not as if it turns out so horribly we couldn't change the law back.

But frankly, this is all a bunch of noise and distracts us from the fact that, as I commented on in another post, the state really can't guide anyone into being in a relationship it wants them to be in.

Marriage was established by the state to encourage stability - for society and for children. This should apply to all couples and all children, not just the ones who follow the mythological "nudge nudge" of the state into heterosexual relationships.