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17.6.04

Liberalism Or Rationalization?

It's been a while since I've done any anti-same-sex-marriage argument deconstructing, so I figured I'd take on and article whose title -- "The Liberal Case Against Gay Marriage" -- made it sound like it might have something fresh to offer. The author, Susan Shell, builds her argument on two tired old points -- 1) marriage is about biological procreation, and 2) marriage equality constitutes the illiberal forcing of one group's opinions on another.

She draws an analogy between same-sex marriage and attending your own funeral:

Once one grants that the link between marriage and generation may approach, in its universality and solemn significance, the link between funereal practices and death, the question of gay marriage appears in a new light. It is not that marriages are necessarily devoted to the having and rearing of children, nor that infertility need be an impediment to marriage (as is still the case for some religious groups). This country has never legally insisted that the existence of marriage depends upon “consummation” in a potentially procreative act. It is, rather, that marriage, in all the diversity of its forms, draws on a model of partnership rooted in human generation. But for that fact, marriages would be indistinguishable from partnerships of a variety of kinds. The peculiar intimacy, reciprocity, and relative permanence of marriage reflect a genealogy that is more than merely historical.

Seen in this light, the issue of gay marriage can be reduced to the following question: Is the desired union between homosexuals more like a marriage between infertile heterosexuals, unions that draw ultimate psychological and moral sustenance (at least symbolically) from the experience of human generation; or is it more like insistence on attending one’s own funeral — a funeral, one might say, existing in name only?


In attempting to reconcile the historic/cultural fact that marriage does not exclude non-procreative heterosexual couples with the supposed historic/cultural fact that the essence of marriage is procreation, she loses her grasp on the possibility of using the potential for unplanned pregnancy as a dividing line between two types of intimate relationships. If all that's needed for proper marriage is an analogy with, or drawing on of, the procreative model, then there seems little reason to exclude homosexual couples -- particularly those who acquire children.

Shell goes on to recognize that, in fact, the legal and cultural trappings of marriage are not all aimed at promoting proper "generation," by advocating broadly-defined civil unions that couples of any gender or level of sexual intimacy should be able to enter into, in order to form a partner bond:

Most, if not all, of the goals of the gay marriage movement could be satisfied in the absence of gay marriage. Many sorts of individuals, and not just gay couples, might be allowed to form “civil partnerships” dedicated to securing mutual support and other social advantages. If two unmarried, elderly sisters wished to form such a partnership, or two or more friends (regardless of sexual intimacy) wanted to provide mutually for one another “in sickness and in health,” society might furnish them a variety of ways of doing so — from enhanced civil contracts to expanded “defined benefit” insurance plans, to new ways of dealing with inheritance. (Though tempting, this is not the place to tackle the issue of polygamy — except to say that this practice might well be disallowed on policy and even more basic constitutional grounds without prejudice to other forms of civil union.) In short, gay couples and those who are not sexually intimate should be permitted to take legally supported vows of mutual loyalty and support. Such partnerships would differ from marriage in that only marriage automatically entails joint parental responsibility for any children generated by the woman, until and unless the paternity of another man is positively established.

As for the having and raising of children — this, too, can be provided for and supported short of marriage. If two siblings need not “marry” in order to adopt a child together, neither need two friends, whether or not they are sexually intimate. Civil unions might be formed in ways that especially address the needs of such children. The cases of gay men who inseminate a willing surrogate mother, or lesbians who naturally conceive and wish to designate their partner as the child’s other parent, can also be legally accommodated short of marriage, strictly understood, on the analogy of adoption by step-parents and/or other relatives. As in all cases of adoption (as opposed to natural parenthood, where the fitness of the parent is assumed until proven otherwise), the primary question is the welfare of the child, not the psychic needs and wants of its would-be parents.


If we can grant same-sex couples so much of marriage, what remains to make the marriage/civil union distinction important? Shell argues that the presumption that the husband is the father of any child the wife bears makes all the difference. That paternity judgement fundamentally makes opposite-sex relationships -- even infertile ones -- a totally distinct species from same-sex relationships. But if we can extend that hypothetical right to opposite-sex couples who will never use it, why not extend it to same-sex couples? It makes a great deal of sense, as I see it, that if a married lesbian gets pregnant, her wife should be prima facie to be the legal parent of the child -- i.e. the person assumed to be responsible for the child's care upbringing -- to exactly the same extent that a married man is prima facie assumed to be the legal father of any child his wife has.

Returning to the same-sex couples versus opposite-sex infertile couples issue, Shell argues:

American citizens should not have the sectarian beliefs of gay-marriage advocates imposed on them unwillingly. If proponents of gay marriage seek certain privileges of marriage, such as legal support for mutual aid and childbearing, there may well be no liberal reason to deny it to them. But if they also seek positive public celebration of homosexuality as such, then that desire must be disappointed. The requirement that homosexual attachments be publicly recognized as no different from, and equally necessary to society as, heterosexual attachments is a fundamentally illiberal demand.

... The deeper phenomenal differences between heterosexual and homosexual relations are hard to specify precisely. Still, these differences seem sufficiently clear to prohibit gay marriage without denying gays equal protection under the laws. Gay relations bear a less direct relation to the generative act in its full psychological and cultural complexity than relations between heterosexual partners, even when age, individual preference, or medical anomaly impede fertility.


It boggles the mind how she can, in one paragraph, argue that it is "fundamentally illiberal" to base our laws on one conception of how similar same- and opposite-sex relationships are, then in the very next paragraph argue that we should base our laws on the fact that it just "seems" (to her) that the two types of relationships are different.

If treating same- and opposite-sex marriages equally is an illiberal forcing of one person's opinions on another, then any definition of marriage is similarly illiberal. The quest for neutrality among opinions in this case is pointless, so we're left to debate the substance. And on the substance, I think that: 1) the institution of marriage provides a useful legal and social framework for establishing a long-term bond between two adults, which enables them to better carry out tasks potentially including child-rearing; and 2) same-sex couples can have as much or as little need for that framework as opposite-sex couples.

I hate to psychoanalyze people, as it too easily turns into ad hominem rather than consideration of their arguments. But after reading Shell's piece, and seeing how she accepts so much of the case that sex and marriage are about more than sperm-meets-egg and is finally reduced to retreating into a vague affirmation that expanding marriage rights just "seems" wrong, it's hard to escape the conclusion that the article is an extended attempt to rationalize a gut feeling.

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