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27.11.04

What Does Marriage Say About Parenting?

Ampersand has a nice post up pointing out a hole in an argument at the Family Scholars Blog against same -sex marriage. The cruz of Elizabeth's argument is:

My problem [with same-sex marriage] is that I don't want all marriage and family law, across the nation, to be rewritten in gender neutral terms that make the law unable to affirm that children, whenever possible, need to be raised by the mother and father who gave them life.


Amp's counterargument is based on the morality of the link between Elizabeth's concern for biological parenting and her opposition to legally recognizing same-sex marriage. Basically, he says that the government may use cajoling or incentives (e.g. subsizied marriage counseling), but may not use mandates (e.g. outlawing divorce), to promote marriage, and that barring same-sex marriage falls in the latter category.

But even if Elizabeth is able to draw a different line to separate permissible and non-permissible marriage promotion that would allow banning same-sex marriage, I still see a pragmatic objection. Barring same-sex marriage as a means to affirm the need for biological parenting strikes me as a very crude proxy strategy.

Same-sex couples are currently quite able to raise children. Allowing gay marriage would make it easier for these couples to successfully raise their children, and may thus lead to more same-sex couples raising children. But would this increase come at the expense of biological parenting arrangements? Only a very small subset of the population faces a real choice between same-sex parenting and biological parenting. The link between same-sex marriage and the choice of other non-biological parenting arrangements (like stepfamilies or single parenthood) seems even more tenuous.

It seems possible that any negative effect that same-sex marriage would have on biological parents would be due in part to people like the Family Scholars. By promoting the idea that marriage is basically, or even solely, a child-rearing device, they encourage people to read same-sex marriage as a statement about parenting.

If what we want* is for the law to affirm the need for biological parenting, what we need is a law that says "when possible, children should be raised by their biological mother and father." That would be more explicit than the current inference from marriage law, it would apply across all types of families, and it would allow us to avoid sacrificing the marital desires of same-sex couples as part of a parenthood campaign.

Of course, this pragmatic objection is decidedly liberal. In accordance with its roots in utilitarianism, liberalism looks on the law as a tool to create certain beneficial outcomes. Elizabeth's phrasing, which talks about the need for the law to "affirm" the importance of biological parenting, suggests that she may take something of a communitarian stance. Communitarians see value in using the law to express our collective values independent of any real effects the law may have. For example, a communitarian might argue that, though our drug laws have been a failure in preventing drug use, they should remain on the books as an affirmation of the nation's view that drugs are bad. If what Elizabeth is looking for is an official social stance that biological parenting is the ideal, then my argument is not going to persuade her.

*I don't really want this, but I'm taking it as given for the sake of argument.

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