The Compromise I Think I Could Accept

07.10.2010, 12:32 PM

Some in the same sex marriage debate have suggested that a compromise position might be that same-sex marriage can or should be recognized in state law (and recognized federally as a civil union) in those states that simultaneously put in place strong religious liberty protections for those entities whose definition of marriage is one man and one woman. (See for example Rauch and Blankenhorn, with finer details of their proposal available in their piece.)

It’s an idea I can’t get excited about. As I wrote in this letter, the protection of religious liberty compromise does not really address the heart of the matter, for me.

For me, the heart of the matter is how redefining marriage requires us to say, in law and culture, that children do not really need their mother and father.

I do believe it’s possible to have two mothers, or two fathers. I believe that a biological mother and her lesbian partner who has adopted the child ARE two mothers. Ditto for two fathers.

But I do NOT believe that having two mothers means you do not also have a father out there, somewhere. Just as children with a mother and a step-father have a father out there, somewhere, children with two mothers also have a father, no matter what their mothers and society have decided to call him (sperm donor, deadbeat dad, special uncle, the “Y Guy”, ignorant bio dad who nobody ever told about the pregnancy, whatever).

A proposal I have never heard made — maybe someone has made it, but if so, I haven’t heard it — is that same sex marriage can and should be legal in jurisdictions that have put in place strong recognition of, and when possible protection for,  the right of the child to know and be known by the mother and father who gave him life.

That is, jurisdictions that ban anonymous donation of sperm, eggs, and wombs — and with it, the erroneous idea that children are just made from random gametes and don’t care where they come from — could also institute legal same sex marriage.

Those jurisdictions would then have two strong pillars in place: the right of adults to form the families they choose, and to have legal and social recognition and protection for those families, and the right of offspring to know about the mothers and fathers from which they come and, just as importantly, to grow up in a society that recognizes that those mothers and fathers matter to them, just like they matter to every other person.

That is a compromise that I, I think, could accept.

Could anyone else?


30 Responses to “The Compromise I Think I Could Accept”

  1. Peter says:

    Would these jurisdictions also need to ban closed adoptions, which also deprive children of knowing their bio fathers and mothers?

  2. Marty says:

    I would also add that medical fertility treatments should NOT be made available to people without real medical fertility problems.

  3. Peter Hoh says:

    I think the time for a compromise was 10 years ago. The anti side overreached with state constitutional amendments such as the one in Virginia, which explicitly forbid the state to recognize anything like civil unions or even contracts that approach civil unions.

    Outside of an academic exercise, how exactly is a compromise supposed to be hammered out? Who signs on? Who represents which side?

    The biggest hurdle: I have some trouble imagining a prominent politician who might champion this compromise.

    I believe that it might be possible to ban the sale and donation of anonymous gametes, but it strikes me as a separate issue.

    I’d like to remind you that when heterosexuals redefined marriage with liberalized divorce laws, no one thought it necessary to include religious liberty exemptions for those whose definition of marriage was one man and one woman, for the duration of their lives.

  4. Peter Hoh says:

    Marty, would you accept Elizabeth’s compromise, were it to include your ban on medical fertility treatments?

  5. Marty says:

    Peter, I really can’t say — the devil is in the details:

    “the right of offspring to know about the mothers and fathers from which they come and, just as importantly, to grow up in a society that recognizes that those mothers and fathers matter to them, just like they matter to every other person.”

    I wonder what that would look like, legally speaking…

    I also think men and women should have equal reproductive rights. It simply boggles my mind that women have more constitutional rights than men do — and nobody cares!

  6. Jay says:

    This isn’t a compromise. It is just yet another condition. There are no questions of religious liberty, unless you think that religions have the right to dictate the nature of a civil and secular institution. (And what about the religious liberty of churches that want to marry same-sex couples: why are their marriages less valid in the eyes of the state than the marriages of those who do not marry same-sex couples: that is the real religious issue here.) In any case, no religion has ever been forced to marry anyone against their religious beliefs. Catholic Churches don’t marry Jews. Catholic Churches don’t marry divorced people (an asterisk around this one because you can apparently buy an annulment and then get married a second time in a Catholic Church).

    In any case, your “compromise” is just another way to try to use same-sex marriage as a wedge issue: in this case, to get government to outlaw donor conception.

  7. Renee Aste says:

    Elizabeth,

    I just posted on Opine a case from Judge Judy in which they tried it (known donation/third parenting) and it got really complicated. Lesbian couple had a gay male friend to donate, instead of going to an anonymous donation. At the time of birth, naturally the father began to bond with the twins and didn’t want to walk away from paternity emotionally and financially. A real case of children having both parents be biological and gay.

  8. John Howard says:

    Marty, heterologous fertility treatment is not a medical treatment, nor is it a right of marriage, nor is reproduction a true right of unmarried people at all. Couples facing a medical problem that prevents them from procreating together should be allowed to get healthy and use medical treatments to facilitate but not replace conjugal sexual reproduction. Marriage should protect the couple’s right to conceive using their own genes, and as far as reproduction goes, that’s it.

    Elizabeth, I can’t accept this compromise because first of all it allows same-sex marriage, which is entirely unacceptable because it either means giving same-sex couples the right to procreate together using their own genes or stripping that right from marriage, and second, ending anonymity might only make use of donor gametes seem more acceptable, as if the experts have acted and fixed the problems, when in fact the problems do not go away just because people are allowed to find out their progenitors identities when they turn 18.

    Where did you and David get the idea that a compromise should be appeasing – minimally, if at all – some small group of potential victims of same-sex marriage, in exchange for same sex marriage? Your two compromises don’t even get same-sex couples equal protections, only a slight carrot for a few more states to unwisely adopt same-sex marriage. A compromise should be to get same-sex couples equal protections, in every state, in exchange for protecting marriage.

    Peter Ho: most state marriage amendments only rule out Civil Unions that are substantially identical to marriage or give the same rights as marriage, if Civil Unions were defined by states as lacking the sine qua non right of all marriages throughout human history, they wouldn’t be substantially similar or give the same rights, and could be enacted in almost all states right away, without needing to re-amend their constitutions. And to answer your question about who hammers it out, I’ve already hammered it out, all we need to do is get Congress to enact it, starting with one Congressman to introduce it. I can imagine lots of politicians who want to protect marriage, give equal protections to same sex couples, and stop human cloning and designer babies. Who would be against those things?

    Peter, I agree Elizabeth’s compromise tries to connect two unrelated issues, and would make as much sense as if an abortion rights activist proposed a compromise to accept SSM if states outlaw abortion, or some other pet issue that is not a right of marriage in the first place, and not really one of the demands of either side. Mine is different in that conceiving together using the couple’s own genes IS a right of marriage, and the compromise achieves the goals of both sides: preserving marriage and extending all the benefits and protections of marriage (but not equal rights) to same-sex couples.

  9. Peter Hoh says:

    Marty and Renee, can you imagine any case in which you would accept state and federal recognition of same-sex couples?

    John Howard, while rejecting Elizabeth’s proposal, at least has a proposal.

    I would accept Elizabeth’s compromise, but I’m not an aggrieved party to this issue, so I don’t think my opinion on this compromise matters.

  10. John Howard says:

    I do appreciate Elizabeth and David and Jonathan making proposals about how to make progress and achieve something. It not only might help resolve the issue and make everyone happy, but even if it doesn’t, it provides a good starting point for conversations about what we feel is important.

    I wondered about the title of this post, considering that I have been proposing my Egg and Sperm Civil Union Compromise on this site for years, and recently quite frequently, seemingly on every other post. I keep asking everyone if they would accept it and if not, why not? So is this title her answer? I hope to hear the “why not” part in some more detail.

  11. John Howard says:

    Also, it’s not as though same-sex couples can’t marry in a jurisdiction that instituted this compromise and so bans anonymous donation, and then simply go to a jurisdiction that didn’t ban anonymous donation to get their anonymous genes. (I’m familiar with this argument against my proposed federal Egg and Sperm law, that people would go to other countries to attempt same-sex conception. Possibly, but, at least our whole country would prohibit it, which would make it possible to sign on to international treaties against cloning and genetic engineering that most of the world is already on board with (which wouldn’t be possible if all we had was 50 state laws against it, since states are prohibited from making treaties). And if a few countries continued to allow it, we’d have to apply international pressure to stop them. Most wars have been fought over much less than the human equality and dignity at stake here.)

    Darn, I’m using up the comments here…only 19 left after this one. I’ll try to get all my points out in as few comments as possible now.

    Peter Ho, can you share with the other readers what you said in a private email to me, about whether you could support my proposal?

  12. Peter says:

    Darn, I’m using up the comments here…only 19 left after this one. I’ll try to get all my points out in as few comments as possible now.

    John, I think everyone knows your position and you don’t need to fill up the comboxes. You’ve been saying the same thing for five years every chance you can everywhere you can. Why not let others have the conversation without you hijacking things?

  13. Lee says:

    I think I could possible support a compromise as Elizabeth outlines but would need the details “fleshed out” a bit more.

  14. John Howard says:

    Because my proposal is still the best proposal anyone has come up with, and is proving more and more needed with each passing year. It needs to be adopted ASAP, and EM and DB need to explain why they are not supporting it and calling their Washington contacts to get it done.

    Peter, I think you oppose my proposal because you demand the right to attempt same-sex conception, which is freaking ridiculous, but at least you are on the record about why you oppose it (and Jay took the same position I think). Elizabeth and David Blankenhorn and Maggie Gallagher have never said whether they are on your side or mine, they’ve just ignored the proposal, and I don’t know why. I bet they don’t even know why each of them oppose it. Is it that they don’t want marriage to protect the right to use the couple’s own genes? That’d be strange coming from Elizabeth, but maybe that’s David’s reason. Maybe Elizabeth opposes prohibiting same-sex conception? Who knows, they won’t say.

    If anyone can find me any post where they have responded to me with more than a cursory dismissal, I’ll stand corrected.

  15. Marty says:

    Peter: “can you imagine any case in which you would accept state and federal recognition of same-sex couples? ”

    Honestly, no… not in any sense in which the recognition is supposed to be “equal” to man+woman marriage. Because, quite simply, men and women are NOT equal. Not physically, not emotionally, and certainly not legally. So any pretense that “two men” or “two women” can be equal to each other — much less to one man and one woman — is a legal fiction that cannot be defended under the cloak of “equality”.

    We’ve already learned the lesson — the hard way — that separate isn’t equal when it comes to something so benign as skin color… so how on earth shall we pretend that separate IS equal when it comes to sex/gender, to mother and fathers, to husbands and wives?

    No, i dont see any accomodation for gender bias under the name of “equality” at all. If you want something else — something separate and obviously NOT equal, I’m willing to entertain your proposal.

  16. Tom says:

    “legalization of same sex marriage can and will infringe on religious liberty in the U.S.”

    I really don’t understand this. What are you saying? Religious people have the right to tell secular organisations what to do because they might be offended?

  17. Marty says:

    Tom, flip your question over:

    “Secular orginazations have the right to tell religious people what to do because they find them offensive?”

    Either we have a First Amendment to the U.S. Constitution, or we don’t. Please clarify.

  18. Tristian says:

    I don’t really see the point of any part of the proposed compromise because I reject the apparent assumptions behind it. I don’t see that gay marriage represents any kind of threat to religious freedom, but if it did that should worry should be addressed by way of prevailing and fundamental principles of religious freedom, which surely trump marriage laws. Secondly, I don’t see at all how gay marriage would “requires us to say, in law and culture, that children do not really need their mother and father” in any sense it which we have not already said it. The whole proposal seems to rest on confusing very different issues, and attempting to burden gays as such with the problems created by decades worth of choices made by others.

    Here’s my proposal. Let’s legally recognize gay marriage and get it over with. Then we can have a long, open discussion about parenthood and the rights and obligations of parents, our shared duties to children, and what have you. Gay marriage is a distraction that clouds that very important discussion.

  19. Tom says:

    Marty, I don’t get what you’re saying. No secular proponent of gay marriage is a proponent simply because lack of gay marriage offends them.

    That said I don’t understand what Elizabeth meant by religious freedom. That was my point. What did she mean. Do you know?

  20. Ampersand says:

    I would eagerly accept your compromise, but that’s easy for me to say, because I genuinely want both ends of it to happen. I want anonymous donations to be banned, regardless of what happens with same-sex marriage. And I want equal marriage rights for same-sex couples, regardless of what happens with open donations.

    The compromise doesn’t make any actual sense to me, however. Why are these two issues connected?

    For me, the heart of the matter is how redefining marriage requires us to say, in law and culture, that children do not really need their mother and father.

    It doesn’t. Go stand in Harvard Square and yell out that children really need their father and mother; no one will arrest you. Write a book on how children need both parents (in a way, you already did!), and it will be both socially and legally acceptable for bookstores to stock your book in Connecticut, or for you to sell it at the New Hampshire Book Fair. If the Vermont legislature wants to pass a resolution declaring that children need mothers and fathers, they can; legal same-sex marriage doesn’t prevent that.

    There is no real-world sense in which your views are censored in states that legally recognize same-sex marriage. I understand that you think keeping same-sex families second-class citizens sends some sort of beneficial message; but it’s unfair of you to treat same-sex couples as if their lives are post-it notes for you to write on.

    So I think your compromise is weird, because the two issues aren’t connected in any real-world way.

    But were it actually offered, and if were I in a position to accept, I’d accept it in a heartbeat. Equality is good. Banning anonymous donation is good. What’s not to like?

  21. John Howard says:

    I agree with Tristian, except of course his proposal is no different from the existing status quo of people demanding “gay marriage right now” and other people saying “no”, so it’s hard to see how adding “and we’ll talk about parenting and sperm donation and all this stuff that is already going on with heterosexual couples” is going to change the dynamic at all. But Tristian, if you want a temporary resolution that gives gay couples everything they have been asking for while we have a national discussion, look at my plan. If we just agreed to roll-back gay marriage and change them all to Civil Unions defined as “marriage minus conception rights” and accepted a immediate moratorium on new technologies to enable procreating with either sex, then we could really do that. It starts with conception rights.

  22. Tristian says:

    The worry about religious freedom is that if gay marriage is legally recognized, churches that object will be forced to accommodate them when it comes to things like providing benefits to spouses, renting facilities for receptions, and so on. But the question of just how far churches are allowed to discriminate based on things like church membership and doctrine is an old one, and there’s a history of accommodation on this score. Colleges and universities with religious identities can require students and faculty to affirm a doctrinal missions statements, for example, without running afoul of anti-discrimination laws. Gay marriage will raise some new questions and we’ll have to sort things out. That’s no argument against gay marriage as we already face the same kinds of issues, and I think churches are doing just fine.

    Also, we need to be careful not to equivocate on “recognize.” It’s not up to individual churches to determine the law of the land, and so if gay marriage is legally recognized churches will indeed have to go along. But that’s not the same as suggesting they will have to recognize such unions as sacramental or what have you. There’s enough of space between these two senses to allow for accommodation whenever extra-legal interpretations of marriage are relevant to church practices.

  23. Marty says:

    Tom, Tristian’s response is pretty good. In a nutshell, if a Baptist church refuses to hire a secretary or teacher in it’s school because s/he’s a tranny, it shouldn’t run afoul of any anti-discrimination laws.

  24. John Howard says:

    What if instead of a Baptist church, it’s a private business deciding not to hire someone for some reason? Does the business owner have to be religious in order to not be sued and forced to hire someone who seems transgressive?

  25. Marty says:

    I dunno John you tell me. Secular businesses don’t seem to be covered by the same sacrosanct respect that the First Amendment grants to religious organizations…

  26. Tom says:

    Marty and Tristan, thanks for your responses. I see the problem that churches will face, but I’m afraid as a committed secularist that I cannot sympathise with them. I think religious concerns should be addressed as is fitting in a liberal democracy but I certainly don’t think this concern should be paramount and it shouldn’t have any weight when compared with personal liberty.

  27. John Howard says:

    Funny, I thought the First Amendment is supposed to prohibit respect of an establishment of religion.

  28. Marty says:

    Tom: I certainly don’t think this concern [religious freedom] should be paramount and it shouldn’t have any weight when compared with personal liberty.

    You’ll have to take that one up with those who made it paramount in the First Amendment (and have ratified it again and again in thousands of court cases).

    As for the “personal liberty” aspect, nobody is depriving homosexuals of the choice to live together in privacy and safety, to raise children, to behave as a “family”.

    But when they claim that state recognition of same-sex is a “civil rights” issue, you can’t help but ask them where in the Constitution that civil right exists? Most will claim the 14th Amendment, as if its ratification in 1868 effectively legalized SSM across the land, even if we’re just now realizing it. But that’s a bunch of balogny. The 14th Amendment never would have been ratified — not then, and not now — if it had ever been understood to create a right to same-sex marriage.

    Therefore, no such civil right exists. We could add that to the constitution if we want to, but actually we see a whole lot more support for doing the exact opposite: 31 states have already done so.

    I’ve got no particular problem letting same-sex couples excercise 100% of their personal liberty, to live however they choose. But the whole “SSM is a civil right” business is a sick joke.

  29. Jay says:

    Marty, I wish NOM and Alliance Defense Fund would hire you as their attorney. Their cases defending Proposition 8 and DOMA and challenges to same-sex marriage bans would be thrown out to gales of laughter.

  30. Marty says:

    Jay, you can keep inventing brand new civil rights out of thin air, and taking a squat on the Constitution and your fellow citizens at the same time. I won’t be laughing.