Helen M. Alvaré is an Associate Professor of Law who, prior to joining the George Mason faculty, was an Associate Professor at Catholic University’s Columbus School of Law. Professor Alvaré chaired the commission investigating clerical abuse in the Archdiocese of Philadelphia and is an advisor to Pope Benedict XVI’s Pontifical Council for the Laity, as well as an ABC News consultant.
“It’s never just about him. It’s never just about her. It’s never even just about him and her together. Rather, it’s always, also about the children he and she could make, or have made together, as indispensable co-creators with God.”
As a family law professor, as a person of faith, and as an American, this is the message I am more and more coming to believe is an essential part today, of any discussion, any lawmaking, any ministering, to men and women in a romantic partnership. This report on the intersection between family structure and faith seems to me to join a plethora of related studies pointing out that unless men and women understand their romantic lives to be linked with the remarkable fact that their sexual intimacy co-creates children, they will too easily succumb to the temptation to treat their partner as a means to an end, and to sever the partnership when the partner disappoints.
Imagine if the sexual relationship was understood, in part but always, to connote “making a father and a mother” from the intimate pair. Of course, it also bonds the couple in important ways; but even the gigantic numbers of “unintended” and non-marital births, all by themselves, counsel the importance of remembering the mysterious decision by our Maker to pair sex with the conception of a genetically-related child who needs rather intensive nurturing for decades to come.
It’s too late to begin such a conversation when a couple is about to marry. By that time (and given historically high ages at first marriage in the U.S.), men and women in the United States have been instructed over and over and over again that sex is one thing and children are entirely another… a rather “problematic” thing if one is to believe what the government and some self-described “women’s rights” groups are saying. They say: “Unprotected sex makes babies. It also makes sexually transmitted diseases.” That’s right, a failure – of technology, or will, or practical skill – is how children, and diseases, come to be, according to the relentless messaging of both these sources.
Without “re-orienting” (early and often) what is most celebrated in American culture about what men and women do together (sex, romantic love) — away from the couple themselves, and their individual and joint happiness –how are we to get to the place where children’s interests are privileged? In the earliest discussions of sex and life skills and vocations, then, schools and churches and families, need to link the relationships between men and women to children. They need to be honest about what the data shows about the link between children’s flourishing, and stable marital families. Obviously, the information should never be wielded as a weapon to hurt, but in the fashion of a hard truth which will, in the end, help more than it hurts.
State and federal governments have, in recent decades, put some effort toward emphasizing the need to keep children’s interests front and center in discussions about marriage. But not nearly enough. Certainly not enough to counter the loud and long message (particularly over the last two years) that women’s freedom is synonymous with the freedom to avoid children, via government-ordered “free” birth control. If this is freedom, how might freedom also include entering into a mutually interdependent, lifelong commitment with a person of the opposite sex, oriented in large part to the care of children? It couldn’t. The law is not the only player here; it can’t “make men and women moral.” But at the very least, it can stop sending the completely wrong message. Then the good messages will make sense.
Churches, too, of course, have a massive role to play. It is a bit shocking, in fact, they have not played it to the hilt by this time in our nation’s marriage crisis. Judeo-Christian traditions after all, explicitly teach that humans can come to “glimpse” God via the experience of a loving marriage. They need to take seriously the duty this implies to minister quite actively to marriage, to divorced couples, and to the children of both. “Nuclear families” are part of church and geographic communities, not self-sufficient fortresses whose boundaries may never be breached. Marriage is both a private and a public reality. Churches have the scriptures and the theology to grasp the “public” aspect better than most secular institutions today. Nothing is holding them back from acting on their understanding. The report, Does the Shape of FamiliesShape Faith?, is another, and an important call to action.
Categories: General
It’s nice that some people think marriage is about children, but it’s really not. No couple is required to have children, in order to get, or stay, married. That applies legally, socially, on just about any level you can think of. In fact, it seems kind of insulting to childless married couples to proclaim that a childless marriage is somehow either irrelevant or a lesser thing, compared to a childful marriage. And I can hardly imagine a society that outlaws childless marriages. And I know I’ll never hear someone whisper that Jim and Sue’s marriage is a really sham, since they never had any children.
So there’s really not much evidence that marriage is centered on children, although that seems to be the latest fad in marriage philosophy. I believe children benefit from having married parents, other things being equal.
I understand Maggie Gallagher’s argument that straight people are basically irresponsible, especially straight males, and will likely neglect to take care of children their sexual encounters produce. And so they need marriage as an incentive to do so. I think Gallagher may be over generalizing from her own personal experience but I also don’t see how marriage is an incentive to take care of one’s children: if a man is committed enough to get married, isn’t he also committed enough to care for his children? And vice versa?
The connection between religion and marriage isn’t about insight. What do, say, Episcopalians know about marriage that, say, Jews, don’t? What are Atheists missing that Mormons could tell them? Religion’s role is one of coercion: stay married or suffer the consequences. If religious people are less likely to divorce (stats say otherwise, though, according to Pew Research), it could be because they don’t want to lose the connection to their church congregation, since only one ex-spouse gets the church and the other ex-spouse has to start anew. Or they want to avoid any sense of shame associated with their religion’s beliefs on marriage and divorce.
More than ever before, we live in an age of voluntary marriage. Neither men nor women are coerced into marriage like before (men for access to sex; women for access to financial security). And it is legally easy to divorce, with little social shame or stigma. Consequently, people get married because they want commitment. And they stay married because they want to.
Prof. Alvaré is right: marriage as a social institution is about children. This does not entail that each particular marriage must have children. But society surely has the most direct and unapologetic interest in their being children, and that they be well raised. The best help that civilization has developed for insuring that children will be well raised is marriage.
Prof. Alvare is NOT right that marriage as a social institution is about children. The notion that marriage is about children is a recent innovation designed to add an ex post facto justification for their discrimination against same-sex couples.
Twelve years ago, before she was so defined as the opponent of same-sex marriage and began espousing the idea that marriage is only about children, Maggie Gallagher wrote that “Marriage is a powerful creator and sustainer of human and social capital for adults as well as children, about as important as education when it comes to promoting the health, wealth, and well-being of adults and communities.”
Of course, when she wrote that, she was probably thinking of the benefit marriage offered to heterosexual couples. But marriage also provides benefits to homosexual couples as well. Sometimes married couples have children, sometimes they do not.
Married couples have never been required to have children in this country. And marriage is not required in order for people to have children in this country.
I should add, of course, that until recently there was enormous social pressure for people who had children to be married. A consequence of that social pressure was a great deal of stigma and social and legal discrimination against children who were born out of wedlock. That is why the U.S. Supreme Court ultimately declared children born out of wedlock a suspect class, which in effect made it illegal to discriminate against them. I am hope that the U.S. Supreme Court will rule in the DOMA cases currently under consideration that homosexuals are also a suspect class.
“That’s right, a failure – of technology, or will, or practical skill – is how children, and diseases, come to be, according to the relentless messaging of both these sources.”
It is an extraordinarily difficult thing, I believe, for young women who have been counseled in this message since they were very small to shift their will, their use of technology, their decision-making, into deciding to be open to having a child. Too many women say when they finally realized and made the decision it was, they eventually found, too late.
I recall being married 5+ years, age 30, knowing the science on decline in reproductive capacity in women by/around that age, and still feeling wildly irresponsible in deciding to be open to having a child. And I was quite pro-child to begin with and surrounded by pro-child, pro-family people! Thank goodness I decided to be “irresponsible” and was soon blessed with my two beautiful babies.
(And I can hardly imagine a society that outlaws childless marriages.)
This woman doesn’t want to outlaw childless marriages, she want to outlaw birth control.
“Prof. Alvaré is right: marriage as a social institution is about children. This does not entail that each particular marriage must have children. But society surely has the most direct and unapologetic interest in their being children, and that they be well raised. The best help that civilization has developed for insuring that children will be well raised is marriage.”
I don’t think society is lacking children. There are plenty of them. Whether they are well-raised or not is another matter. If marriage is so good for children, why don’t we require parents to be married, at least while their kids are minors?
If marriage is about children, why do so many married couples not have children, and go to great lengths (birth control, abortion) to not have children? I keep reading how marriage is about children and yet the exceptions abound and I think there are actually more childless couples than childful couples among married adults. There has to be something else going on with marriage if so many adults get married with no intention, ability or desire to create and raise children.
It’s ridiculous to keep saying that marriage is about a thing and in so many cases, that thing isn’t even present in the marriage. Yet I keep reading it, particularly in the context of opposition to same-sex marriage.
Honestly, it’s really insulting to childless couples to keep proclaiming that marriage is about children. It’s even insulting to childful couples, who feel they have something that exists apart from their children.
Indeed, as Mont D. Law says, this woman would be happy to outlaw birth control. She seems to think that the Affordable Health Care Act mandates the use of birth control instead of merely assuring access to it. The whole essay is little more than parroting the talking points of the Roman Catholic bishops.
Actually, there are not plenty of children. The birth rate in the U.S. is a little below replacement level, and the birthrate in all of the rest of the developed world is well below.
Moreover, most married couples do have children, and even most young unmarried cohabitors do or soon will. Likewise, many same-sex couples have children, especially lesbians, though usually from a prior opposite-sex marriage.
That a sizable minority of the educated classes spend much of their teens and twenties trying not to have children does not change the overall relationship between marriage and children.
Actually, you have to count the children not conceived because of birth control, and not birthed because of abortion, in determining the country’s baby needs. If we have a low birth rate, that’s because couples are making the choice not to have children. A perfectly valid choice, I might add, and one that does nothing to diminish marriage. Even the self-righteous and cryptically named National Organization for Marriage doesn’t advocate against childless marriages.
And factor in immigration. To wit, the US has no lack of capacity or ability to bring babies into the world, we just don’t want to. And straight couples are no more, or less, fertile when they marry. Marriage does not make a couple more fertile.
What is the relationship between marriage and children, to your thinking? Is this your personal opinion, or is it recognized in law?
Uh,”even most young unmarried cohabitors do or soon will. Likewise, many same-sex couples have children, especially lesbians, though usually from a prior opposite-sex marriage.”
I would think that those statistics clearly indicate that there is NOT a strong relationship, or even correlation, between marriage and children.
I do find it interesting that those who are oppose to same-sex marriage because marriage is all about children and gay and lesbian can’t reproduce usually forget about the children who are being raised by gay and lesbian couples.
See http://marriagebuildingcalifornia.com/ and
http://www.sbmarriageinitiative.org/
Wow Kevin! Will you marry me? That was awesome! I’m going to have to think of some other stuff to say now….That guy is logical.
“It’s never just about him. It’s never just about her. It’s never even just about him and her together. Rather, it’s always, also about the children he and she could make, or have made together, as indispensable co-creators with God.”
This is the kind of thinking driving massive human rights violations in adoption donor conception and quasi-marital families. Those practices exist because of the desire to believe something we all know is not true. We all want to believe that without marriage children would not exist. Marriage is what creates children because people become indispensable co-creators with God when they get married. Children are irrelevant to their parents unless they are the children of their spouse. Children conceived during affairs are only worth treating as theirs if they get to pretend that their spouse is the other parent and if their child forsakes half their family in service to the rearing parent’s family. Children created with people who are not your spouse are not even human until a married couple makes them a child of a marriage.
Think of what bio parents raising donor offspring tell their kids – that their father is just a donor and not a father. Their spouse is the father, they are married they are a couple and together they created the child with the help of a donor. His child is their child because they are married and is not his child because he is not married to their mother. The child does not matter to the father because he is not in love with the mother, his other children will matter because he’s married to their mother. The child would not matter to the mother were it not for the ability to represent the child as the product of her and her partner’s love for one another and as indispensable co creators with God.
Great people don’t have any value to the creator of the universe unless they are married and have children with their spouse and parents will not love or care for their children unless they can pretend their spouse is the other parent.
Nowhere in any of that marital childmaking is plain old personal responsibility for the results of your actions. The parent child connection by virtue of having caused a child to exist. It should not make a difference that the mother is not your spouse, the child is still YOUR child and your obligation to raise and care for even if it means your marriage falls apart under the pressure – your first obligation is to your children, not your spouse. So as Karen says there are no Donors only Fathers and Mothers, and I would add that they are failing their children because they are under the mistaken belief that its OK to neglect children created outside of a marriage. Hopefully some nice married people came along and took care of them so they could be considered indespensible to God.
This fantasy that marriages create children and that children are dependent upon being the issue of a marriage to exist and have value is the reason we have the global market for children and human life. Married people believe they deserve children and unmarried people believe they don’t deserve them and are not required to care about them. It’s gotten so bad that now we have a whole industry that relies on that very premise in order to produce more and more children of separated families for the married people who deserve them
Helen:
A minor quibble: The birth control provided by insurance companies under the terms of Obamacare isn’t “free.” It goes to employees who have earned the insurance with their labor, just as they’ve earned their paycheck with their labor.
More importantly, the contradiction you see simply doesn’t exist. Freedom to choose is freedom. Women are free to choose to try and prevent pregnancy (and many do), but they’re also free to choose to try and become pregnant (and many try, very hard), or free to choose to be open to whatever happens.
Nothing about saying “people are free to choose” contradicts the idea that “people are free to choose to enter into a child-centered marriage.” That you think these two ideas are contrary is disturbing, because the implication is that you think people are only free to choose child-centered marriages if other choices are somehow made unavailable.
This is also illogical. Nothing about saying that “unprotected sex makes babies” (which is a strawman oversimplification of what people actually say, as I think you know, but let’s go with it for the sake of argument) requires interpreting unprotected sex as “a failure.” Most often, in my social circle, unprotected sex is a conscious choice to be open to the chance of pregnancy.
I’m as liberal as they come, as are my friends. But we don’t say “oh, too bad your birth control failed” when a baby is born. We say “congratulations.” I live with two beautiful children, and contrary to your shallow, stereotyped, and uncharitable view of anyone who disagrees with you, we don’t view those children as burdens, mistakes, or failures. We love them.
Elizabeth:
The decision to be open to parenthood is a life-changing decision; is it really reasonable to expect that people will make the decision without ever experiencing any trepidation at all?
Although there are individual exceptions – people who had sex at age 17 without giving a thought to consequences and everything turned out wonderfully – in general, I don’t think the decision to be open to parenthood should be entered into lightly. If being raised in our horrible, liberal society where women have access to birth control burdened you with having to consider your decision, I’m not convinced that’s a bad thing.
I’m so happy that you have two wonderful children. Children are amazing. But I suspect that your children are the product of birth control technology.
Certainly, the two wonderful children I live with are the product of birth control tech. Without birth control technology, they wouldn’t have been born; instead, their mother would have had different wonderful children, earlier, when she was unmarried and younger. The life their mother has led – which eventually led her to her husband, and her children – would have gone along a completely different course.
The girls I live with are wonders, and they would not exist if it wasn’t for the technologies that gave their mother the ability to choose when she wanted to be open to children.
I don’t believe that the world would be better off if birth control technology did not exist, and the two amazing girls I’ve seen grow up didn’t exist.
“It’s nice that some people think marriage is about children, but it’s really not. No couple is required to have children, in order to get, or stay, married. ”
Kevin, that is an oft repeated statement that’s entirely incorrect.
First of all, marital law IS invoked repeatedly in parental suits, and by gay couples in the name of equality.
Second of all the fact that not all marital unions actually reproduce means that marriage is a framework for reproduction.
in the very same way that reproductive organs remain reproductive organs whether or not they actually reproduce.
In my opinion, the primary challenge to the relevance of marriage as a reproductive framework is the increasing numbers of children born outside of marriage. When the framework falls into disuse, and other frameworks are sought, the framework becomes less relevant to society. Gay marriage seeks to institutionalize this challenge as the new reality.
If marriage has nothing to do with reproduction, than in my opinion it is none of the states business, and indeed we may see a full privatization of marriage down the road, depending on whether or not it is economically beneficial to the state.
Billy, your idea that opponents of same sex marriage ignore children being raised by same sex couples makes me think that you haven’t been reading this blog much.
ki sarita, what is incorrect about the statement that no couple is required to have children in order to get, or stay, married? Can you name one place where this statement isn’t true? How can marriage be about something, if that something isn’t present, and doesn’t have to be present? That defies any kind of logic I’m familiar with. Marriage in its essence is committed companionship, no matter how much pretzel logic the anti-gays try to apply.
Children are certainly beneficiaries of marriage, as their parents or caregivers are in a more stable relationship. And during a divorce, children, like property, are given consideration for how they are to be distributed to the parents.
Marilynn, I’d marry you in a heartbeat but I don’t want to have children and evidently marriage is about having children, so I can’t. Sorry!
ki sarita, family law (not marital law) protects children whether the parents are married or not. Non married parents have exactly the same obligations to their children as married parents. Being married does not alter in any way the rights and responsibilities regarding children except that there is an assumption of paternity to children who are born while parents are married, though that assumption can be challenged in court.
In short, marriage is neither a prerequisite for having children, nor is there an obligation to have children if one is married.
I have seen very little real concern on this blog for the children of same-sex parents.
I have seen some faux concern generated by the junk science of Regnerus that would lead people to think that same-sex couples are unfit to be married. I have seen some concern expressed for the children of gay couples who have been conceived via artificial reproductive technology, but mainly the concern has been with how to prevent the use of art by gay couples.
We are told that marriage is a wonderful institution for raising children, but many of the people who say that the loudest also work about gay couples being allowed to marry. That makes me think that they have very little concern for the children of those couples.
They urge straight couples with children to marry almost as a panacea to any problems they may have, yet do everything they can to prevent the marriage of same-sex couples with children.
One other thing:
ki sarita writes the following mindboggling statement:
“Second of all the fact that not all marital unions actually reproduce means that marriage is a framework for reproduction.”
Huh? The fact that not all people are right-handed means that hands are a framework for right-handedness.
The fact that not all people are homosexual means that people are a framework for homosexuality.
The fact that not all automobiles are audis means that automobiles are a framework for audis.
The fact that not all computers are apples means that computers are a framework for apples.
How about, the fact that some parents are unmarried means that being unmarried is a framework for reproduction?
the structure and design of marriage has developed to serve the reproductive needs of that culture. In most societies, including ours, the message is overt and acknowledged. The fact that an individual marriage does not arrive at that conclusion is irrelevant.
The framework precedes the action that it is designed for.
The fact that ever increasing percentages of people are reproducing regardless of marriage, however, does change it to the extent that these methods compete with marriage.
You write “except for the presumption of paternity”. That’s a very large exception. Huge.
If you exclude it from the essence of the definition of marriage, would you agree that it should not apply to gay couples?
Our aging society has at least as much to do with children not being seen as necessary to marriage as anything else. If I live to be the same age as my grandmothers, I will spend approximately 4/5ths of my life not parenting. Most women will spend more years postmenopausal than fertile. People’s lives don’t stop with their children, and most people have a whole lot of living left after any children they may have had are grown.
Actually, the structure and design of marriage developed to serve the political needs of each culture. Couple-centered marriages existed long before the modern era (as for example, among indigenous peoples of the Americas, where paternity wasn’t an issue). The more egalitarian the society, the more couple-centered its marriages (which is not synonymous with “irresponsibility towards children”).
I think the entire discussion woul be improved if we started sourcing our statements of the historical purpose of Civil Marriage in America.
Dr. Nancy Cott Professor of History at Harvard University researched The History of Civil Marriage in America from the State’s Interest.
Dr. Cott testified that the purpose of the State’s Interest in Civil Marriage was PRIMARILY about creating stable households for the State more easily to govern. AND Civil Marriage was PRIMARILY for the adults, NOT the children of the couple together with any other dependent s such as slaves, maiden aunts etc. Although the benefits of Civil Marriage benefitted the dependents of the couple, the State’s Primary interest was with the adults and forming stable households, which same gender couples do equally as we’ll as opposite gendered couples. Take 30 minutes and read the testimony of the Nations greatest historian on the States Interest in Civil Marriage. Her testimony was not impeached by the defendants.
http://www.scribd.com/doc/116836110/History-of-Marriage-Discrimination-in-the-USA-told-in-Dr-Cott-s-Testimony-in-the-Prop-8-Trial
Ki I’ve asked you those questions before and the answer you gave me was along the lines of well they are a reproductive unit even if they don’t choose to reproduce or even when the cannot reproduce they appear for all intents and purposes to meet the reproductive standard for marriage and you would not redefine the meaning of marriage for a few bad apples who did not want to have children or who could not for whatever reason. There was one time when you actually said that it was OK for married women to represent that their husband’s were the father’s of their children conceived with men who are donors. You’re reasoning that absent their father’s involvement in a real and functional way, that it was reasonable to substitute the husband as if he were the child’s father, because children need a father and as a married couple the outside world would perceive them to be children of their marriage.
Now Ki you know I do respect you and in general you are a very grounded thinker but that is all razmataz. You can’t support those statements with anything other than feeling.
Kevin I’m heartbroken. Now you go illogical sort of when you say:
“Children are certainly beneficiaries of marriage, as their parents or caregivers are in a more stable relationship. And during a divorce, children, like property, are given consideration for how they are to be distributed to the parents.”
I know that enough people go around behaving like their offspring are property to do with as they please to make us react to custody arrangements as if it is split property but it is not. It is a division of responsibility for raising their minor offspring or minor adopted children so that the children continue to receive the physical and financial support they are owed by both parents. We should change the law to eliminate the term parental rights entirely. A right is when it is reasonable to expect to rely on others to fulfill their obligations. The benefit could be direct or indirect but fact is that children don’t owe parent’s anything because they did not ask to be born. They are helpless and have to rely on someone and there are only two people directly responsible for their existence, all the other players are interchangeable and the same kid could exist, but not their parents. So it is a division of obligation to a free independent person who has their own rights and civil liberties and everything they are not owned by their parents and their parents should not have a right to them the child should have the right to the parent
Billy you were making sense right up until you said
“I have seen very little real concern on this blog for the children of same-sex parents.”
You just got finished saying that marriage is not what makes people parents right? And that marriage is not what obligates people to their children, right? I’ll add to that marriage is not what obligates people to their adopted children either. The existence of ones offspring or of one’s adopted child is sufficient to obligate them regardless of marriage – so then how Billy is it that a child can have same sex parents?
Being human they should have two like every other human. And either one or both of them can be gay straight or bi or on sexual strike it should not have any impact on their child having a right to rely upon their parents for care and support, in or out of marriage. Nor should it make a difference to an adopted child being able to rely upon their adoptive parents.
So how is it possible to say that any child has same sex parents? If marriage to one of the parents is what is giving them claim to a relationship with the child I think that is valid but not a s a parent, but rather as a step parent. There are plenty of legal rights and obligations that stem from step relationships. We need to put a stop to marital presumption of paternity because when its false its allowed to stand and then reality twisted just the way your saying Ki is bending reality, and she is no doubt but so are you if you believe that being married to a person is sufficient call to claim full on parenthood of their child. It’s wrong and it steals the childs rights and identity.
Ki why should we continue to have a presumption of paternity when it may in fact be false and lives and families are destroyed by it. Here I am the lone supporter of gay marriage who thinks the presumption of paternity ought to be outlawed for every person of every persuasion. If it cannot be dna testing of every child at birth then sworn statements of genetic maternity and paternity aknowledging that the information collected is used as a vital statistic and for medical research on heritable disease and is a person’s medical record. If the sworn statement is ever discovered untrue the records should be corrected and all parental recognition stricken
Regarding why I support the presumption of paternity for heterosexual couples:
As long as most children are born to married couples than the marital presumpton of paternity is valid, although a small percentage of cases will fall through the cracks.
I accept that if the culture changes to the extent that most children will not be born to married couples, than the presumption is no longer valid.
I do not believe this would be a positive development, because we have as of yet no better way of tracking paternity.
Regarding the whole “framework” discussion- here’s another analogy- say law school- not everyone who completes law school will actually practice medicine.
And not everyone has to, in order for the law school to define itself as an institution designed for teaching law.
I would say if we agree that we have gotten to the point that paternity can not be tracked through marriage (we’re going in that direction but not there yet), or if one believes that the tracking of paternity is unimportant, then there is no state interest in defining, recognizing, or otherwise having any involvement in regulating human pair bonding, no matter the gender or sexual orientation of the persons involved.
The more people I talk to the more I see that SSM is inextricably linked to ART; if it were not, if it were specifically stated that it did not involve any assumption of a blatant biological impossiblity, I would be ok with same sex couples adapting their lives to the heterosexual institution of marriage.
Social structure developed around heterosexual norms of the majority, of which marriage is the most major one, and gay folks are members of the same society as straight and should be equally able to participate in it’s cultural institutions, if they so choose.
What’s creepy about the “presumption of paternity” concept to me is that it seems to be a holdover from the era when men essentially owned their wive’s bodies, including their reproductive parts. So that if she produced a baby, the husband took ownership or control of (and responsibility for) the baby, regardless of who the actual father was.
It also makes a statement about marital infidelity in that such infidelity must be common enough to require a principle to apply to pregnancy: if a woman is married, the baby is legally (if not genetically) her husband’s. Which tells me that sexual fidelity must not be a defining characteristic of marriage. And that surprises me, because I thought it was.
I’ve often seen that the presumption of paternity preclude legalizing same-sex marriage but I haven’t really seen a good explanation for why that has to be. If you’re a non-reproductive couple, straight or gay, then PP doesn’t apply to you. Seems simple to me.
Kevin, you have it backwards; the whole point of the presumption is that we’re not prying into the couple’s reproductive life, including their fertility. If they choose to marry, then they’re choosing to agree that the husband is assumed to be the father of the wife’s children.
Wa wa wait – Ki you just said that so as long as a law is fair to the majority of people then it is acceptable if it is unfair to a minority of people? Dr. Sweet once d that he was interested in making laws that are fairest for the majority of people and I just about blew a gasket.
Majority rule minority rights was a little idea I was thinking that someone must have had before me and my big brain came along and I looked it up – Thomas Jefferson is credited with it. Shucks for me. Anyway Ki here is the text from the U.S. State Department about Majority Rule Minority Rights and gosh am I glad its not suppose to work the way you said. I mean that is how it is now, but that is not how it is suppose to be. For pete sake why are we voting on gay marriage when its an equality issue not a majority rule issue? For all the people who have had their identity stolen by the marital presumption I hope that something changes soon.
Majority Rule, Minority Rights
On the surface, the principles of majority rule and the protection of individual and minority rights would seem contradictory. In fact, however, these principles are twin pillars holding up the very foundation of what we mean by democratic government.
Majority rule is a means for organizing government and deciding public issues; it is not another road to oppression. Just as no self-appointed group has the right to oppress others, so no majority, even in a democracy, should take away the basic rights and freedoms of a minority group or individual.
Minorities — whether as a result of ethnic background, religious belief, geographic location, income level, or simply as the losers in elections or political debate — enjoy guaranteed basic human rights that no government, and no majority, elected or not, should remove.
Minorities need to trust that the government will protect their rights and self-identity. Once this is accomplished, such groups can participate in, and contribute to their country’s democratic institutions.
Among the basic human rights that any democratic government must protect are freedom of speech and expression; freedom of religion and belief; due process and equal protection under the law; and freedom to organize, speak out, dissent, and participate fully in the public life of their society.
Democracies understand that protecting the rights of minorities to uphold cultural identity, social practices, individual consciences, and religious activities is one of their primary tasks.
Acceptance of ethnic and cultural groups that seem strange if not alien to the majority can represent one of the greatest challenges that any democratic government can face. But democracies recognize that diversity can be an enormous asset. They treat these differences in identity, culture, and values as a challenge that can strengthen and enrich them, not as a threat.
There can be no single answer to how minority-group differences in views and values are resolved — only the sure knowledge that only through the democratic process of tolerance, debate, and willingness to compromise can free societies reach agreements that embrace the twin pillars of majority rule and minority rights.
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mythago says:
01.19.2013 at 5:13 PM
Kevin, you have it backwards; the whole point of the presumption is that we’re not prying into the couple’s reproductive life, including their fertility.
You know its super frustrating that people try and make a simple little thing like telling the truth about who a child’s biological parents are into like we are prying on their fertility….this is not about them and their fertility its about who the are the genetic parents of this newly born individual – people that are genetically related are not allowed to lie and just say the parent is someone other than themselves and look then the whole world is going to know that they reproduced either by sex or AID or IVF or the kind of sex that is rape or whatever. Why don’t they get to keep their reproductive reality a secret like the donor ofrfspring parents or heck like the donor offspring. Reproduction is not private for anyone else with offspring but donors nor is it private for anyone entering their name as a parent on an original birth record. Of course everyone has to assume that those are genetic parents because we have a method for obtaining authority over other people’s offspring and it’s called adoption we also have a method for giving title to the spouse of a person who has offspring that are not also their offspring – step parent. Whenever I hear someone talk about their privacy being violated by identifying them as not the genetic parents I’m like big wahhhhh you want to lie and you want everyone’s help with that? If it relates to people other than yourself it is not yours to keep private. Nobody wants to see those people’s medical records they just want to know if they are related to the kid they are saying they are the parent of. Poor babies they don’t want to tell the truth because they prefer the way they feel about themselves when people believe something that is not true.
Yeah they agree it will be assumed but it is suppose to be true. Everyone thinks married people have this big old free pass to lie to the world and hid pertinent info about other people so long as it strengthens their marriage.
marilynn: we’re talking about who is recognized as a child’s legal parents, not what the parents or anyone else is allowed to say about the child’s biological heritage. Do you think adoption should be illegal because that “lies” about who the child’s biological parents were?
I think that the ammended certificate is a fake and it is not necessary. There is no reason why an adoptive parent could not present their adoption certificate in conjunction with the birth certificate that it relates to in order to establish their authority over a particular child in those rare instances where birth certificate’s are required. I’m a mom and I’m a person the amount of times I have had to present either of our certificates I can count on three fingers.
They don’t need whole new identities it should be handled like a name chage if that even because they should not have their names changed unless they want to when they are older – only if there was no first name given is it necessary to alter their names. There is no reason why records are not available to them on demand from birth on forward.
It matters how a person comes into possession of a child that they claim to be the legal parent of mythago don’t you think? It maters very much say, if they have the permission of the court meaning the actual parents identity is recorded or they at the very least made an effort to locate the child’s parent and identify them before just calling someone else their legal parent. What we have going on now is people who are legal parents who got there outside of court by having paid one of the child’s parents to go away and never physically or financially support them. Abandon they contracted for a child’s abandonment and they want to be considered legal parents?
marilynn, I genuinely cannot follow your argument. I’m talking about who the law recognizes as a parent. You are talking about how that is documented.
Presuming paternity was a way to protect children. Being born through adultery would have been a huge social stigma. It also meant that the man couldn’t accuse his wife of cheating and refuse to support a child. Keep in mind they had no DNA testing and couldn’t be sure who was the father.
The question is should we change it.
Mythago, I don’t believe that the “presumption of paternity” principle is about not prying into a couple’s reproductive lives. What I’m curious about is why such a principle exists in the first place: why would there be any reason to think that the baby is anyone but the husband’s? It must have been fairly common, or common enough, that the baby was actually not fathered by the husband, or some men claimed the baby birthed by a woman married to someone else.
I guess I’m wondering, what circumstances or issues are ever resolved by this “presumption of paternity” principle.
Marilynn, your primer on “majority rules” and minority rights was a delight. If I may, I’d like to add a little.
Majority rules is a particularly useful principle when there are more choices than permissible outcomes, or when the choices are mutually exclusive. For example, we can’t elect both Barack Obama and Mitt Romney as president, so we choose the one who gets more votes: the majority rules. Similarly, we can’t drive on both sides of the road, not safely at least, even though either side is an acceptable choice, so it could easily be put to a vote.
Popular voting on same-sex marriage does not require a “majority rules” scenario, because there’s not more choices than permissible outcomes: both different-sex marriage and same-sex marriage can co-exist without burdensome compromises. In fact, most of the anti-gay marriage rhetoric is formulated as if society is facing a decision to have different-sex marriage OR same-sex marriage, rather than both.
Voting on same-sex marriage was just an opportunistic tactic of the anti-gays, taking advantage of a widespread dislike of gay people by the majority straight class. But we should always be suspicious when a group decides to give itself a right, privilege or advantage, but denies it to someone else. There’s something fishy going on!
“I’ve often seen that the presumption of paternity preclude legalizing same-sex marriage but I haven’t really seen a good explanation for why that has to be. If you’re a non-reproductive couple, straight or gay, then PP doesn’t apply to you. Seems simple to me.”
You and I may agree on that but the gay marriage advocacy movement does not, and some courts have agreed with them in the name of equality.
Helen, I’m assuming you’re Catholic. On that assumption, what’s shocking is that you think “it’s a bit shocking”. The Catholic Church has but one view toward divorced/remarried couples and that is … you can’t partake of the sacramental life of the Church. Since that is the case, most divorced/remarried Catholics leave the Church, or stay in the closet and receive Communion.
Hence, there’s no outreach by the Church to divorced persons or their children. Since they’re not really full-members of the community, they needn’t bother with all that.
Further, annulments, a cutesy euphemism for divorce, is the Church’s response to divorce … so much so, that serial annulments are not uncommon.
I wonder what outreach the Church has for marriages that have been annulled with children. Since the ‘supposed marriage’ never happened what are the children told about that? Are these considered out-of-wedlock children? Were the parents actually fornicating for years on end? How are those children integrated into the social life of the Church? If the mother/father ‘re-marry’ (?) or get married the first time, are the children considered adoptees … and, are the non-biological parent not step-parents?
I applaud the larger Christian community, FS and IAV, for admitting what’s going on in the culture at-large, and attempting to bring the survivors of divorce (parents and children) into a loving community … presupposing that those affected are of a Christian persuasion.
mythago”marilynn, I genuinely cannot follow your argument. I’m talking about who the law recognizes as a parent. You are talking about how that is documented.”
Heck yes I’m talking about how that is documented how they got to that point where they are being called a legal parent. It makes no difference if they are good at raising kids if they are raising one they kidnapped for instance or if they are raising one they bought for instance. Come on the ethics of obtaining a child matter and the ethics of how children are obtained in gamete donation may be legal but it legal the same way many wrong things have been legal. It results in children being treated as property.
If someone becomes the parent of another person’s offspring in a court approved adoption that was done ethically and no graft or trafficking or private contract was overlooked in the granting of that adoption then the relationship stands on its own merits and the caregiving is not clouded with having been given as the result of some other nefarious act like paying one of the parents to abandon the child.
Now you follow? Its not that I don’t give credit to non genetic forms of parenthood its just that they have to be more carefully scrutinized because of the opportunity for trafficking. You don’t buy a genetic child/parent relationship so there is nothing unethical in the relationship itself – the behavior of the parent after the fact can be unethical or abusive and then you deal with that as its own issue. But how a person becomes a legal parent to someone else’s child has to be handled so carefully so as not to objectify the child it has to be closely scrutinized if you don’t want a thriving black market in child sale.
Ki and Kevin
We all agree on this what Kevin said:
““I’ve often seen that the presumption of paternity preclude legalizing same-sex marriage but I haven’t really seen a good explanation for why that has to be. If you’re a non-reproductive couple, straight or gay, then PP doesn’t apply to you. Seems simple to me.”
and then what Ki said
“You and I may agree on that but the gay marriage advocacy movement does not, and some courts have agreed with them in the name of equality.”
Here is the thing Ki they have a point: if straight people are getting to do this ugly unfair thing they wah why can’t they. Killer point. And I’m sorry but an answer like “its just easier to believe the lie when straight people do it” is not going to cut it. First its a totally lame answer and second its just a totally lame discriminatory answer. What surprises me is that with all the back and forth about Gays being discriminated against in the presumption of paternity nobody is going well the children are getting shafted by when straight people do it so lets stop entirely. Either DNA test every child or do sworn statements of genetic parenthood that state its only good until proven incorrect then pfffft there goes your parental status
And Ki and Kevin that would mean that children of sperm donors would never have another person named on their birth record until they finally found their fathers and if they found their fathers they’d be full fledged members of his family recognized as his children same as any he raised. Screw who ever raises the sperm donors kid and screw all the work they did all the love and effort they put in you cannot work yourself into a roll and title that cannot be unworked out of – father does not have to throw a foot ball and pay the bills to be a father. He’s just a bad one if he does not or does not do something similar like write the checks and cook dinner.
No, marilyn, I really don’t follow, because you are talking about something entirely different. The presumption of paternity means that we don’t force a husband to prove he is the biological father of his wife’s child, as we do when an unmarried man is asserting he is the father of a child. You are saying this is a bad thing because, in the handful of births where the married couple used a paid gamete donor, that might camouflage child-selling; therefore the better approach is to force all married parents where the woman gives birth (the vast majority of whom are the biological mother and father of their children) to prove that the kid isn’t the milkman’s.
This does not strike me as a sensible argument.
Marilynn, you KNOW that I LOVE what you are saying, belive in and stand for…but I have to agree with Mythago on this one.
That is why I stand firmly behind the defense of one man, one woman marriage and the social/cultural defense of the importance of biological/mother/father/family. Call me a bigot. It’s truth.
Kevin I would add for some clarity on majority rules minority rights that majority rules have to do with decision making that does not involve the violation or taking of anyone’s rights to equal treatment under the law. We vote on issues that don’t necessarily violate people’s rights but rather on things that are more in the realm of preference. Nobody has a right to have a new library built downtown and some people want their tax money to pay for a new library other people think its a waste of money when the old building works perfectly well – time to put it to a vote.
What you don’t vote on is whether or not black people should be allowed to sit on the front of the bus. What you don’t vote on is whether women should have the right to vote. What you don’t vote on is whether its OK to purchase human beings. What you don’t vote on is a person’s right to rely upon full unobstructed access to your own medically accurate birth record from birth forward. What you don’t vote on is whether some minors have a right to support and caregiving by their bio parents while others do not – when the others who don’t were other’s whose parents were paid not to take care of them there is a real problem. Not only is there unequal treatment where they don’t have the same rights other people have, people are actually purchasing their parent’s reproductive rights in order to essentially own their offspring free and clear and to be able to identify them as theirs rather than as adopted. Own the heffer, own the calf. Donor offspring are named after who ever paid their parent off to go away. They are owned, they are not free. Even when they find their parents or siblings ultimately they have no legal standing as their relative. No right to time off work to attend a funeral, no right to help a sibling immigrate, no right to Dual U.S. Citizenship when their father is a U.S. citizen, no right to claim a sick sibling they are caring for as a relative dependent on their taxes. But the right to marry their first cousins makes up for it (they are not legal cousins so its OK). Minority rights, majority rules. The majority can make the rules but they cannot abuse the rights of the minority. It’s just to say in all things be fair and know the difference between preference and want and actual rights
“mythago says:
01.19.2013 at 5:13 PM
Kevin, you have it backwards; the whole point of the presumption is that we’re not prying into the couple’s reproductive life, including their fertility. If they choose to marry, then they’re choosing to agree that the husband is assumed to be the father of the wife’s children.”
Mythago
Let me ask you this as I am determined that some how I’ll learn to say what I’m saying in a way that makes sense to you.
Let’s start with your statement above. You said that they choose to marry then they are choosing to agree that the husband is assumed to be the father. Would you say then that a child born of the wife’s affair would have no right to an independent relationship with his or her bio father and family? Should the child’s right to support financial and physical be limited to their mother and whoever she is married to? What if she is not married? Then does the child have the right to the mother’s support and nobody else because Mom is unmarried? Or should the child have the right to their bio father’s support and contact only if the mother is not married to someone else she likes better? So bio dad is kind of a fall back when all else fails and the kid might end up on welfare then it’s ok to name bio dad as father? I’m just asking you to think critically about whether the child has a right to something that the mother has no say over – does the child have a right to support from the bio father that the mother has no right to iterfere with? Does the child have the right to call her husband father and be supported by him even when he is not really their father and does not want responsibility for the child? What is really going on there? What are the child’s rights because it looks like the child has the right to whatever the woman that gives birth feels like.
So in that same vein of what the mother feels like what if she and her boyfriend decided that her husband should not be named father of her child. What if she wanted the real father her boyfriend to have his name on the certificate and they had a positive paternity test. Would you think her husband had a right to prevent him from being named father would he have the right to be named father and get partial custody in a divorce? Does the husband have the right to be the father of his wife’s children no matter what he basically owns her kid? I bet the mother could stop her husband from being named as father if it were not
biologically true.
That leaves us with a presumption for efficiency sake on the part of the state and lots of room and latitude to lie on the part of the mother and her husband. Which is why I think its time to get rid of it. It is ripe for abuse. Why not be more specific to ensure greater accuracy.