Against the “new conversation on marriage”

03.11.2013, 3:43 PM

At HuffPo, Heather Laine Talley of the Feminist Wire does not much like our “Call for a New Conversation on Marriage.”  Her thesis is that privileging marriage in the U.S. is a bad thing, whether married gays and lesbians are a part of the privileged circle or not.  She says:

It’s not surprising that as marriage equality looms, the Institute of American Values is generating a vision that redefines the boundary of who should be demonized and systematically marginalized. In fact, if and when the Supreme Court makes a ruling that falls somewhere on the equality side, we will likely see more and more efforts that replace the language of heterosexual privilege with marital privilege.

But the incorporation of gays and lesbians into these efforts makes this work especially troublesome, precisely because it gives this “new conversation” a veneer of progress. The ugly truth is that the gays and lesbians who have signed onto the Institute for American Values’ new vision are complicit in an approach that both delegitimizes vibrant queer kinship patterns and fails to address the very problems it purports to tackle.

Her argument seems similar to the argument advanced in the 2006 public appeal, Beyond Marriage.

As a card-carrying marrigae nut, when I was an opponent of gay marriage I viewed arguments such as Talley’s — insisting that our real goal is not to make marriage more equal, but to ”de-privilege” it entirely — as strong reasons to oppose gay marriage, since almost everyone who wants to knock marriage off its privileged institutional perch also firmly endorses gay marriage, often on the grounds that gay marriage will aid the larger project of de-privileging.  Now, I … hope I was wrong.


50 Responses to “Against the “new conversation on marriage””

  1. Elizabeth Marquardt says:

    The Inner Lives of Children of Vibrant Queer Kinship Patterns. Anyone want to write that book with me?

  2. Elizabeth Marquardt says:

    Another great quotable phrase in her piece: “marriage makes for strange bedfellows.” Ain’t that the truth!

  3. John D says:

    Odd, my perception was that those who wish to “de-privilege” marriage tend to be opposed to same-sex marriage as well. This is one of the rationales advanced by gay opponents to same-sex marriage. Their argument is that marriage is bad and allowing gay people to marry just makes it more entrenched. Talley clearly fits into this category. She opposes same-sex marriage.

    I suspect that allowing gay people to marry will indeed make marriage more entrenched. It’s one of the reasons that I support same-sex marriage.

  4. Albert says:

    I do not agree with Talley’s opposition to marriage either in general or in respect to same-sex marriage. But what makes her position interesting is that she opposes same-sex marriage because she thinks it will hurt gay people.

    On the other hand, your opposition to same-sex marriage was that gay people would hurt marriage.

    I find the following statement a bit surprising: “As a card-carrying marrigae nut, when I was an opponent of gay marriage I viewed arguments such as Talley’s — insisting that our real goal is not to make marriage more equal, but to ”de-privilege” it entirely — as strong reasons to oppose gay marriage, since almost everyone who wants to knock marriage off its privileged institutional perch also firmly endorses gay marriage, often on the grounds that gay marriage will aid the larger project of de-privileging. Now, I … hope I was wrong.”

    As I recall, the reason you gave under oath was that same-sex marriage would somehow deinstitutionalize marriage and somehow interfere with responsible procreation by heterosexuals. I don’t recall you arguing that same-sex marriage should be prohibited because homosexuals did not want to get married.

    In any case, I don’t think anyone is arguing that marriage should be mandatory.

    There are a lot of heterosexuals who are opposed to marriage and who will never marry. Is that a reason to deny all heterosexuals the right to marry?

  5. JHW says:

    It’s not true that “almost everyone who wants to knock marriage off its privileged institutional perch also firmly endorses gay marriage.” Much to the contrary, the vast majority of people who want to “knock marriage off its privileged institutional perch” are ambivalent about same-sex marriage precisely because it does nothing of the sort. People like Michael Warner, Nancy Polikoff, Paula Ettelbrick, and Katherine Franke have been making this argument for years. If you want a particularly strident recent version of this argument, see Yasmin Nair, here.

    I can’t think of anyone who maintains that same-sex marriage should be supported because it will ultimately lead to the disestablishment and deprivileging of marriage. There are people who believe that the disestablishment and deprivileging of marriage would be a great victory for freedom and equality, and that same-sex marriage, by granting more people access to relationship recognition, is a smaller victory for freedom and equality. But that is not the same thing.

  6. fannie says:

    “The ugly truth is that the gays and lesbians who have signed onto the Institute for American Values’ new vision are complicit in an approach that both delegitimizes vibrant queer kinship patterns and fails to address the very problems it purports to tackle.”

    That’s, um, quite an accusation, but I really don’t think that’s an accurate generalization about the “complicity” of all “gays and lesbians” who have signed on, including myself.

    Nonetheless, I can understand her reticence to fully embrace this project. It’s entirely possible I’ve missed it, but I have yet to see any prominent progressive feminist voice featured, either in dialogue or symposium, or signed on (and no, I don’t consider myself sufficiently “prominent,” LOL, as someone who’s signed on).

    Yet, gender issues, gender identity, and gender roles seem to be where many lingering tensions are with respect to moving conversations about marriage forward. Oftentimes that point gets lost in the “gay” framing, but even many purportedly “civil” arguments against same-sex marriage are grounded in arguments that men and women are “complementary” and/or “opposite” and that therefore same-sex marriage is an impossibility.

    So… don’t we want more people involved who think about, write about, and analyze gender on a frequent basis? I do. I don’t think a national conversation about marriage and family should be devoid of feminist thought. (I know that would be some people’s ideal, but it’s not mine.)

  7. Hector_St_Clare says:

    Re: I suspect that allowing gay people to marry will indeed make marriage more entrenched.

    It’s also possible that as (civil) marriage gets more inclusive, people will become less interested in it.

  8. Elizabeth Marquardt says:

    Hi Fannie — well, there’s more to come, including a fascinating FamilyScholars symposium upcoming featuring What is Parenthood? the new NYU book with lead editor Linda McClain that was conceived here at the Institute, and other luminaries such as June Carbone, Naomi Cahn, and Nancy Dowd.

  9. Elizabeth Marquardt says:

    We also have forthcoming releases on gender and parenthood, notably Brad Wilcox and Kathleen Kovner Kline’s book Gender and Parenthood published by Columbia U Press, born here at the Institute, and a report summarizing it’s major findings that we’ll release roughly in May.

  10. Albert says:

    Hector St. Clare, I would think that if people become less interested in marriage as it become more inclusive they are not really interested in marriage at all.

    It used to be an expected chorus of people claiming that the government should get out of the marriage business entirely and everyone should have civil unions. There is less of that now because it was really a way to be opposed to same-sex marriage without appearing prejudiced against gay people. Most of the people who used to parrot that expected line seem to have come over to the ssm side.

    Ssm does not seem to have lowered the marriage rate in Massachusetts and other states where ssm is legal.

  11. Kevin says:

    It’s not who gets married but what they do with marriage and how they experience it that matters. The high divorce rate surely must send terrible signals to potential marriage candidates: who wants to get married, just to end up going through an emotionally and financially painful divorce?

    Even dumb comments like, “let gays get married and be as miserable as the rest of us!” are not exactly ringing endorsements.

    I would say that there are reasons to distinguish between marriage as an institution, and any marriage involving two particular people. A high divorce rate doesn’t mean that there’s fundamentally something wrong with marriage, but maybe that people are getting married for the wrong reasons, or have unrealistic expectations of marriage.

    However, changing economic circumstances for women suggests that the institution of marriage itself may be becoming less relevant, or at least one of the significant structures that kept marriages intact, economic dependence, is weakening.

  12. Hector_St_Clare says:

    Re: I would think that if people become less interested in marriage as it become more inclusive they are not really interested in marriage at all.

    They might be interested in a ‘thick’ conception of marriage (saturated with religious meaning, oriented towards children, no option of divorce and remarriage, complementary gender rolse, etc.) but not be particularly excited by a ‘thin’ conception (in which each couple sort of defines what marriage means to them). As marriage gets more flexible, some people will probably be less interested (just as other people may be more interested). I could be wrong though.

  13. Albert says:

    Somehow I don’t believe that people with a “‘thick’ conception of marriage (saturated with religious meaning, oriented towards children, no option of divorce and remarriage, complementary gender rolse, etc.)” are suddenly going to start “living in sin” and producing children out of wedlock because the lesbian couple down the street got married.

  14. kisarita says:

    I also believe that gay marriage is bedfellows with the de-institutionalization of marriage because they’re both based on the perception of marriage as a private individual thing.

    However, I don’t think marriage is endanger just yet, because it is a lot harder to take privilege away from people than to grant it to them. however, this could be something brewing down the road, depending if the state finds it economically beneficial or not.

  15. zztstenglish says:

    @karista – “they’re both based on the perception of marriage as a private individual thing.”

    Yep. Marriage involves a 3rd party which is the government.

  16. Anna Cook says:

    Reflecting directly on the original post (and Talley’s piece), I’d like to speak up as a fellow queer woman who is ambivalent about the potential of the “new conversation” to simply re-inscribe the old hierarchy of Married People vs. Others, only this time with those of use same-sex married folks included in the circle of trust.

    Don’t get me wrong: I am not a marriage skeptic in the overall sense. I’m historian enough to know that social institutions are what we make of them. True, marriage has historically had a lot of structural aspects I strongly disagree with (exhibit A: coverture, the institutionalized erasure of women’s personhood and citizenship within marriage). Yet unlike some feminists (though by no means all of them) I do not believe marriage is irredeemably oppressive to women. I believe in our human ability to reinvent our institutions to serve us better.

    [An aside: I wrote a blog post at In Our Words last summer on why it was important to me to get married, if anyone is interested.]

    So I’m definitely in support of marriage as a form of social and legal recognition of relational commitments. What I don’t appreciate is the elevation of marriage as a state of being over … everything else. I have single friends, dating friends, divorced friends, friends in casual relationships, friends who’ve lost partners through death, friends who’ve been abused within marriages and lacked the social support to get out, friends who’ve found their way to happiness and health in a myriad of ways — some of which don’t involve getting, remaining, or ever planning on being married. These people also deserve social support to be well, and to participate fully in our society. They also deserve recognition for the care work they do supporting their children, partners, friends, and extended family. They deserve protections from abuse and access to services in times of vulnerability. Marriage may be the ideal for some, but it will never be a realistic or accessible state for all.

    So it sits really uncomfortably with me to have any sort of conversation about marriage that give that particular form of familial relationship an elevated status. And it’s this discomfort that keeps me from signing on to this new conversation; because I see many of the same old assumptions about marriage being somehow objectively better than other relationship forms. Assumptions that seem to ignore the messy reality that many people within human relationships experience.

  17. David Hart says:

    I have read Talley’s verbose and marginally structured piece twice. I haven’t a clue what she wants or, for that matter, what she does not want. She claims that she is not an opponent of marriage equality.

  18. Greg Popcak says:

    David,

    You mention that you hope that you’re wrong. Can I ask, in all sincerity, on what do you base this hope? It is a major sticking point for me.

  19. Hector_St_Clare says:

    Re: Somehow I don’t believe that people with a “‘thick’ conception of marriage (saturated with religious meaning, oriented towards children, no option of divorce and remarriage, complementary gender rolse, etc.)” are suddenly going to start “living in sin” and producing children out of wedlock

    Most cultural conservatives have premarital sex and ‘live in sin’ too. I don’t think that’s going to change. Some religious conservatives already view civil marriage as a sham anyway.

  20. gremlint says:

    I think that most people who advocate the idea of “homosexual marriage” really couldn’t care less whether marriage survives or not.  In this culture of narcissism, they simply want to cynically use marriage as a tool to force heightened social validation for homosexuality and the queer subculture in general.

    But for ring leaders like Heather Laine Talley, it goes further.  Note the typical Orwellian language she uses — “vibrant queer kinship patterns”.  Her insidious false premise is that there are important similarities between natural biological kinship (i.e. humans bonds brought about by common genetic inheritance) and the dysfunctional, sterile unions of “queer kinship” — initiated by environmental abnormalities and then amplified by cultural Marxism.

    But here aren’t.  Marriage honors tradition and natural gender limits.  That is why these vanguards of the queer proletariat would love to see marriage destroyed.  As Marx wrote in the Communist Manifesto:

    “All that is solid melts into air; all that is sacred is profaned.”

  21. Mont D. Law says:

    (Most cultural conservatives have premarital sex and ‘live in sin’ too. I don’t think that’s going to change. Some religious conservatives already view civil marriage as a sham anyway.)

    Presumably these are two different groups of conservatives. Neither of whom are showing any indication they’re going to give up marriage. Cultural conservatives marry younger, at higher rates and more often then anybody else. AFAIK no religious institution or even a single church has relinquished their right to marry people civilly. I have never heard of a single couple marrying in a church and not marry civilly.

  22. Mont D. Law says:

    By the way, I just want to remind everybody – feeding trolls is a bad idea. If you don’t given them gas they put-put off to chum somebody else’s waters.

  23. Diane M says:

    @Mont D Law – Not a huge point, but some straight people do have religious marriages without getting legally married. However, I am from a more liberal religious group.

    @David Blankenhorn – “almost everyone who wants to knock marriage off its privileged institutional perch also firmly endorses gay marriage, often on the grounds that gay marriage will aid the larger project of de-privileging. Now, I … hope I was wrong.”

    What I’m getting from Talley’s piece is that she wants to de-privilege marriage and is not really in favor of same sex marriage. She wants it as a right, but thinks it is going to strengthen traditional marriage. So that should be good news for marriage nuts, right?

  24. Mont D. Law says:

    ( but some straight people do have religious marriages without getting legally married.)

    Do you have a cite for this. Particularly one that indicates a trend?

  25. David Blankenhorn says:

    To a number of commenters:

    Yes, I agree that some people who want to de-privilege (to me the better word is deinstitutionalize) marriage don’t support gay marriage. But many people who support gay marriage do see it as a strategy for deinstitutionalization. Judith Stacey, for example; and there are many others; I quote lots of them in my book The Future of Marriage.

    Albert:

    Your description of my views are not recognizable to me. But I don’t see the point of debating you about what I think, in part because we (now) agree on the policy issue at stake.

    Greg P:

    It took me a long time — way too long — to grasp the fact that many gay and lesbian people who are fighting for gay marriage do not merely want the legal right to marry; and they are not (as Grimlint says above, in a particularly ugly way) out to wreck or undermine the institution; but on the contrary, want to participate in the institution, fully and in good faith. They want to be a part of it. They want to “do” marriage. This is particularly true at the grass roots. It took a long time for this to sink in, for me. And if you want to wrestle with this issue, I’d say, don’t just look at the progressive journals where the left wing theorists go on and on; instead go to a PTA meeting and look at who’s sitting there, worrying about their kids just like everyone else.

    This is our hope, man. Marriage needs all the supporters it can get! The old divisions are demonstrably not serving the institution that you and I care about so much, and so we need a new pro-marriage coalition, one that includes liberals as well as conservatives, gays as well as straights. You asked for a sincere answer. This is it.

  26. Jason Jackson says:

    David:

    Obviously there are two views of the role of marriage post-legalization of gay marriage, a de-institutiuonalizing one and a resurgence one. A couple questions:

    1. Do you see any of the following as a part of the de-institutionalizing movement:
    a. the out-of-wed births model?
    b. increased support for non-marital couples?
    c. society’s trivialization of the importance of sex?

    2. Will you be prepared to fight the de-institutionalizers (and perhaps, find common ground and write in support of pro-tradition organizations (say, Heritage Foundation) on certain issues) if the “Beyond marriage” movement is the one that takes off. What if it is “Beyond marriage” that is the outcome?

  27. Diane M says:

    @Mont D Law – I was going to say no cites, no trend that I know of, just something I’ve heard of leftists doing.

    However, a quick search on the web turned up some people who don’t get licenses because they are on the far right (a license suggests that the state can give you permission to marry without your parents consent, among other things). While they seem to be a movement, I do not think they are a big one.

    I think what they are doing is a seriously bad idea. If a woman is planning to enter a relationship that involves sharing property and raising children, she needs some of the state protections of marriage. The more “traditional” your sex roles, the more you need it.

    Anyhow, I don’t see this as having anything to do with same sex marriage. These are just people who think that they want their marriage to be between them and God, not them and the government.

    It’s funny how people at the far ends of the spectrum in theory sometimes come together in practice.

  28. Diane M says:

    So will legal marriage change LBGT people as Tanney worries? I think yes, but less than she believes.

    First, because as David Blankenhorn says, many LBGT people really want the marriage commitment. They aren’t that different from everybody else.

    Second, I think that the networks of support she refers to aren’t about trying to replace marriage. Many LBGT couples live together and support each other in the same ways married couples do; it’s just harder without support from society. From what I can see, the networks of support are a reaction to:

    1) being kicked out of your extended family or feeling uncomfortable around them; and

    2) general discrimination and danger faced by LBGT people.

    In a community where many of your members can’t go home for Thanksgiving, you’re going to create a new family for the holidays.

    And if you can’t hold hands in public, you’re going to create places where you can hang out with other LBGT couples.

    I don’t think those problems are going to go away overnight or with legal marriage. I wish they would, but I don’t believe it.

    Perhaps someday in the future there will be a loss of community if LBGT people are fully accepted in society. That might be sad, but I would rather have a world where people’s extended families are accepting and it’s safe for married lesbians to hold hands in the park.

  29. JHW says:

    Here’s Judith Stacey in the New York Times Room for Debate subsequent to the passage of marriage equality legislation in New York:

    Contrary to conservative fears, the gay struggle for the right to marry rebuffs rather than promotes radical feminist and gay family politics. A bid for inclusion, not upheaval, the campaign for marriage has already been nudging gay culture in a more conventional direction. Winning the right to marry exerts social pressure to do so. My research suggests that younger gays are less likely than their forebears to envision alternatives to marriage and nuclear family life. Legal same-sex marriage will, at least temporarily, shore up the declining status, prestige and appeal of marriage in the U.S. for straights as well as gays.

    She goes on in a similar vein.

    I don’t think same-sex marriage is the kind of legal development that will mean substantial changes to the institution of marriage as a whole. I don’t think it will do much in the way of shoring up or undermining marriage’s status as an institution. But there’s one concretely observable development that I think has genuinely been caused by marriage equality: mainstream LGBT activism is much less interested than it once was in crafting legal alternatives to marriage to protect LGBT families.

    When marriage was out of reach, the push was for functional tests: if you and your partner are economically interdependent, you should be able to cover him on your health insurance plan, even if you’re not married; if you and your partner are raising a child together, your partner should be able to adopt her without displacing your legal parentage, even if you’re not married; if you and your partner live together in your rent-controlled apartment in an intimate long-term relationship, he should be considered a member of your “family” when you die, even if you aren’t married.

    Same-sex marriage, however, reframes such issues. If you have it, you don’t need second-parent adoption, domestic partner benefits, or broad definitions of “family” to protect your loved ones. And if you don’t have it, your lack of access to legal protections becomes tied to that denial, and the policy agenda becomes get marriage, instead of devising substitutes for it.

    Whether you think this is a good development or not obviously depends on your perspective. But it’s happening; it bothers people like Nancy Polikoff, and it probably delights people like Andrew Sullivan, who pushed for exactly this shift in framing way back in 1989. And so I’m very doubtful about the notion that the push for same-sex marriage is a furthering of marriage’s deinstitutionalization. No: the push for same-sex marriage is a recognition that marriage remains institutionalized, and a decision to join it rather than contest that. Many people argued for alternative approaches; the authors of the Beyond Marriage statement made a kind of rearguard effort in that direction. They lost.

  30. David Blankenhorn says:

    JHW:

    You make many good points. In her book, Stacey makes precisely the opposite argument from the one you are quoting, unmistakably, at some length, and with apparent conviction.

    Jason Jackson:

    On question 1: Yes, in my view the three trends you cite are part of de-institutionalization.

    On question 2: If the Beyond Marriage idea is the one that takes off and becomes dominant, then eveything I’ve worked for and have believed in for many years will be over, kaput. I really don’t know what I’ll do, in that case — maybe learn basket-weaving.

    PS: If you are JJ the policy guy, good to hear from you!

  31. Jason Jackson says:

    David,

    Since the trends I cite are happening independent of gay marriage being legalized (and, regardless of how one feels about pornography, it probably further alters “trivialization of the importance of sex”), I feel that it is nearly impossible we are not heading “beyond marriage.” So my question 2 should be one you should carefully consider.

    And If by “JJ the policy guy” you mean the guy who debated you over Christmas, this is me. I actually have been using a pen name, but feel free to look up my email if you’d like to talk more about this stuff.

    If by “JJ the policy guy” you mean someone else, ignore the last paragraph.

  32. David Hart says:

    If this is a “conversation,” that requires more listening than talking. Religious conservatives refuse to listen to gays on this issue. They are too busy claiming that the world will come to an end. Many of them don’t even acknowledge that gay people exist.

    What is their alternative to marriage equality? Prayer does not solve the problems of a gay couple raising a kid or two. Religious opprobrium is irrelevant to a gay couple’s estate planning.

    If gays are going to couple (they are) and;
    If gays are going to raise children (they will);
    Then aren’t we all better off if those gays people marry?

  33. Diane M says:

    A question related to de-institutionalization of marriage.

    I don’t like the idea of giving more rights to unmarried couples. As JHW points out (and Stacey’s piece), once anyone can choose to get married, why create alternative structures for people who don’t marry?

    They can get married if they want to be married. In addition, for many couples who don’t want to be married, it would actually be upsetting to discover that they were going to be treated as though they were married anyway.

    However, given that large numbers of couples have children without getting married, would it be in the best interests of the child to treat their parents like married couples? In other words, if you were living with someone and had children together, like it or not, you might end up with all the legal obligations (and privileges) of marriage?

    This may be a crazy idea, but I would like to hear what other people think of it.

  34. Anna Cook says:

    In other words, if you were living with someone and had children together, like it or not, you might end up with all the legal obligations (and privileges) of marriage?

    This was actually a widespread practice in the United States for much of the 18th and 19th centuries, Diane. It was referred to as “common law” marriage and in many places was treated as equally legitimate in terms of rights and responsibilities as solemnized marriage. For example, common law marriages were accepted as marriages for the purpose of distributing widows pensions in the early 19th century.

    Today, a very limited number of jurisdictions recognize the formation of common law marriages, but as civil action was what originally prompted the move away from the common law system, there is no reason why we could not, as a society, decide to move back to the same or similar moving forward.

  35. Amy Ziettlow says:

    In terms of common law marriages, John Culhane speaks to recent history in the law related to common law marriages in my recent interview with him. I think it’s part 2! (Shameless plug!)

  36. Manny says:

    What is their alternative to marriage equality?

    Civil Unions that don’t give society’s approval of sex and making babies together, but give all the other benefits and obligations.

  37. zztstenglish says:

    @Manny – And why do civil unions exist to begin with whether it be for straights or gays?

    What societal purpose does it serve? Answer: none. So, why should the taxpayers subsidize it.

    I suspect its creation was simply a ‘political compromise.’

  38. Manny says:

    JHW: “If you have it [SSM], you don’t need second-parent adoption”

    If you are referring to presumption of paternity when a woman gives birth, what makes you think it would apply to a same-sex marriage? It wouldn’t. It really shouldn’t apply to a heterosexual marriage anymore either, now that people are using 3PR. Now that paternity testing is so cheap and accurate, it should be done automatically for all newborns, so that the birth certificate correctly records the father and mother (or is left blank if no match is found). If a caregiver is not a progenitor, they should have to go through the adoption procedure, whether they are married or civil unioned or not, or remain step-parents. But same-sex couples should not be approved to make babies together (using 3PR or any other method same-sex couples might use) by giving them legal marriage status, no partner in a same-sex relationship should ever be approved to get pregnant. If they wind up pregnant, they should have to do it unintentionally and try to identify the father, who should have precedence over the partner for legal parenthood and have to relinquish custody before the baby could be adopted (which should not amend the birth certificate but be a separate document). These laws are all necessary for preserving human rights and dignity and equality, we can’t abide human trafficking and adultery.

    Civil Unions that did not approve of making babies together would obviously not circumvent the need for second-parent adoption either, they would not make the civil unioned partner automatically a legal parent of any child born to the other partner. But they would give both partners all the benefits and obligations of marriage in all other matters, except not approve or officially allow making babies together. The reason for them, @zzstenglish, would be to forge a political compromise that would preserve marriage and also help gay people who have formed committed relationships and increase their stability and obligations to each other. They would highlight what is unique and special about marriage more than just denying all recognition would. While I agree they should be opposed if they give all the rights of marriage, they are not so bad and would not be too expensive if they helped us preserve marriage.

  39. Diane M says:

    @Anna Cook (and everyone else, really) – but would it be a good thing or a bad thing to go back to common law marriages?

    “as civil action was what originally prompted the move away from the common law system, there is no reason why we could not, as a society, decide to move back to the same or similar moving forward.”

    Also, I think common law marriage was typically something where you got it if you had been calling yourself husband and wife. If so, how would we apply it in a world where many people cohabit?

    What would you think if applying it to people who are living together and have children, whether or not they say they want common law marriage to apply?

    In other words, what if two single people living together had a baby and then broke up – and then you told them that they needed to go through a divorce? That their property was community property or one of them owed alimony? or that they needed to make an agreement about custody? or that they couldn’t marry anyone else until they’d gotten divorced?

    That, I think, is the other side of giving cohabiting couples the goodies that come with marriage.

    It also might actually be in the best interests of the child.

    Or it might just be a crazy idea that would undermine marriage even more.

  40. JHW says:

    David Blankenhorn: Do you mean her 1996 book In the Name of the Family? (I haven’t read any of hers.) Possibly she changed her mind? It’s certainly true that many people supportive of transformative change to norms and laws surrounding the family have at times seen the gay rights movement as the vanguard of a push for that change. But it’s also true, I think, that most such people have ended up disappointed.

    Manny: No, what I was referring to was step-parent adoption, which is available to married couples but (because they couldn’t get married) was not available to same-sex couples. Second-parent adoption, as I understand it, is just step-parent adoption without marriage.

    For what it’s worth, states with same-sex marriage, civil unions, and comprehensive domestic partnerships almost always recognize the wife or female civil union partner of a woman who gives birth as the legal parent of the resulting child.

  41. John D says:

    Hector brings up an interesting thought. What if we made marriage more in line with what some people claim is it true nature: limited if any divorce options and geared to procreation. I have long mused that if we put it to an either or vote, either end divorce and no benefits to the non-procreating, or no changes but we allow same-sex couples to marry, same-sex marriage would win in overwhelming numbers. Perhaps I’m wrong, but my guess is that if we increase the hurdles to getting into marriage or the hurdles to get out, fewer will even bother.

    That said, I think Manny’s concept of relationship rights for sam-sex couples with a ban on procreation just don’t work. First, it’s separate and unequal. Actually, the President’s Prop 8 brief makes a very good argument that separate relationship schemes for same-sex couples are also discriminatory. Manny doesn’t even seem concerned about making them separate but equal. He’s willing to go right for the unequal part. That won’t work under US law. Plus, his very argument about procreation seems to violate people’s rights.

    It’s not as if these assisted reproductive procedures were invented for gay people. There just aren’t enough gay people looking for assisted reproduction to sustain the research and facilities. No, this is the work of opposite-sex couples who wish to go past barriers that would otherwise leave them without children. (For the record, I have no idea what 3PR is.) I know that there are people who wish to ban assisted reproduction. Let me break it to you gently: it’s not going to happen.

    Since we won’t be banning opposite-sex couples from using assisted reproduction, we certainly can’t ban same-sex couples. This is all about being fair. There is no justifiable reason to treat people differently depending on their sexual orientation. With Manny’s idea we could have a bisexual woman able or unable to use assisted reproduction depending on whether she married a man or a woman. This makes no sense.

  42. Manny says:

    3PR is Third-Party Reproduction, aka intentional unmarried conception, aka sperm and egg donation. I’d seen the term 3PR used on this blog so I thought it was understood, thanks for asking for clarification.

    Manny doesn’t even seem concerned about making them separate but equal. He’s willing to go right for the unequal part. That won’t work under US law. Plus, his very argument about procreation seems to violate people’s rights.

    Actually, it’s 3PR that violates people’s rights as declared in UN charters and as found in human history to be born to married parents, and there is no right to do 3PR, or fornication or adultery for that matter.

    Yes, I certainly think same-sex couples have unequal rights, they have zero right to create a person, while a married man and woman have every right to create a person. Equating their right to procreate is precisely the problem. All people have a right to procreate, but only as the sex they were born able to procreate as, with someone of the other sex, and only in marriage. No one has a right to procreate – to create a new person – either as the other sex or with someone of the same sex, or by themselves.

    Civil Unions should certainly be unequal in that they should not approve of the couple creating a child, while marriages should certainly approve of the couple creating a child. However, they could still give same-sex couples all the other benefits and obligations that marriage gives and in all other respects be treated exactly like marriages. So the right phrase is “Unequal but Together” and note that the “Together” part is entirely optional, a compassionate response to the needs of same-sex couples, but there is no right for unmarried people to be given any of those benefits or obligations in the form of Civil Unions.

    “no benefits to the non-procreating”

    Now JohnD, you know that’s a strawman. Marriage has never required procreation, no one has ever wanted to deny benefits to the non-procreating. Marriage is given to couples that are allowed and approved to procreate, whether they are able to or not. Same-sex couples are like siblings – they should not be approved to make children together.

  43. John D says:

    Manny,

    Now JohnD, you know that’s a strawman. Marriage has never required procreation, no one has ever wanted to deny benefits to the non-procreating. Marriage is given to couples that are allowed and approved to procreate, whether they are able to or not. Same-sex couples are like siblings – they should not be approved to make children together.

    Well, if marriage has never required procreation, that same-sex couples can’t procreate together hardly seems a reason to deny them marriage, or condition their receiving some benefits of marriage on the condition that they do not procreate.

    I was merely taking your continued linking of marriage to procreation seriously. Now you tell me it isn’t so (which is what several people, myself included) have been saying to you.

    You can say “marriage has never required procreation,” but I think I won’t be alone in holding you to that statement. If marriage has never required procreation, then why should there be a form of marriage that forbids procreation, especially forms that are open to other couples?

  44. Manny says:

    “Well, if marriage has never required procreation, that same-sex couples can’t procreate together hardly seems a reason to deny them marriage, or condition their receiving some benefits of marriage on the condition that they do not procreate.”

    It’s not that they can’t, it’s that they can’t do it in an ethical way, the only ways they can do it violate children’s rights and harm dignity and equality and turn people into objects. Same-sex couples wouldn’t receive benefits on the condition that they do not procreate, they would receive the benefits for committing to each other with no other conditions. They would not be approved to create children, but their CU benefits wouldn’t be taken away if one of them procreates.

    “I was merely taking your continued linking of marriage to procreation seriously. Now you tell me it isn’t so (which is what several people, myself included) have been saying to you.”

    Marriage is linked to procreation rights – marriage is the right to procreate together. There should never be any discrepancy, any couple that has a right to procreate has a right to marry, and any couple that has a right to marry has a right to procreate, and couples that don’t have a right to marry do not have a right to the marry, etc. They are synonymous, never out of sync.

    “If marriage has never required procreation, then why should there be a form of marriage that forbids procreation, especially forms that are open to other couples?”

    There doesn’t need to be any form of civil union for couples that are not approved to create children, but it would help such couples to have the other benefits and obligations of marriage. These Civil Unions wouldn’t forbid procreation, they just wouldn’t approve of making babies like marriage does and should continue to. We should also prohibit making babies outside of marriage, and that is what would actually forbid procreation. No couples should be allowed to intentionally make babies outside of marriage. But even if we aren’t able to prohibit that because too many people want to do it, we should still not approve of making babies with someone of the same sex, we should not say that people have an equal right to make babies with someone of the same sex.

  45. David Hart says:

    Manny:

    You are mixing together two issues; marriage and how gays acquire children. One has nothing to do with the other. The purpose of marriage is to create a marital estate and to care for children if there are any.

    Like it or not, some 2 million children in this country are already being raised by gay parents. Some of those are couples in committed relationships. Those children will be more secure if they have married parents.

    Then there are gay couples who choose to adopt children. There is nothing unethical about adoption.

    There are some lesbian couples who will obtain children through artificial insemination. We can discuss the ethics of doing so. Like many things, we leave that up to the individual citizens to decide. But it has nothing to do with marriage. Couples are going to do that, married or not. Gay or straight.

    Finally, a very few gay couples could choose surrogacy. I say a very few because of the expense and inherent risks. Again, that has nothing to do with marriage. We can have a conversation about the ethics of surrogacy.

    Every study confirms, by the way, that children do just fine when raised by gay couples (the Regnerus research, for all its other flaws did not study kids raised by gay couples). Again, however, none of that has anything to do with marriage.

    I’ll remind you that gays do not have a monopoly on either artificial insemination or surrogacy. Single straight men and women, unmarried heterosexual couples and married heterosexual couples are all consumers of ART.

    Nationwide marriage equality is inevitable. Get used to it. Get over it. It is going to happen.

  46. Teresa says:

    @John D:
    I know that there are people who wish to ban assisted reproduction. Let me break it to you gently: it’s not going to happen.

    What is your reasoning, John, concerning ART not being banned?

  47. JHW says:

    DR84: You are conflating different things.

    Can the sexual relationship of a same-sex couple produce children? No.

    Is it appropriate for a same-sex couple (or an infertile couple, or a single woman) to procreate with the aid of donor sperm? There’s a plausible argument to be had that it is not, though I don’t agree with that argument.

    But is it appropriate for a same-sex couple to adopt? Is it somehow bad or improper for same-sex couples to raise children, when the way they have come to be raising children does not raise the ethical issues surrounding donor insemination? I don’t see why—and I don’t think your comment gives us any reason why. Certainly the bare fact that same-sex couples can’t procreate isn’t a reason in itself. How is that relevant?

  48. John D says:

    Manny,

    I largely have to echo what David Hart said. But I didn’t notice David addressing the following:

    We should also prohibit making babies outside of marriage, and that is what would actually forbid procreation.

    Just how exactly would you accomplish this? If an unmarried woman becomes pregnant (something that happens all too often), what do you propose happens next? It’s prohibited, you say. Do we march her off for an abortion whether she wants one or not? Do we insist that she marry the father of the child? What if he’s already married? Death penalty for out-of-wedlock pregnancy?

    Could we get some specifics here?

    Teresa,

    There are some fervent opponents to assisted reproduction, but they are few in numbers. Assisted reproduction is, generally speaking, non-controversial. There are certainly valid objections that can be raised to assisted reproduction. The issue isn’t going to move votes.

  49. Manny says:

    David Hart is wrong, marriage is the right to create children, and same-sex couples do not have a right to create children, nor do single people, it violates the rights of children and harms society. Existing children can be protected by Civil Unions that do not condone or express approval of creating more children.

    John D, if an unmarried woman gets pregnant, she just has to claim it was unintentional. But if she is publicly defiant about claiming she did it intentionally, then I think she should be put in jail for a month and the baby taken to be raised by foster parents. That’s what I think, though I know we probably won’t actually start doing that, but it doesn’t matter we don’t have to punish people for it at all. I do think we can and will shut down sperm banks and stop internet sites that facilitate 3PR, because people are starting to understand that it violates children’s rights and that it CAN be stopped. Many people erroneously believe that it can’t be stopped. The important thing now is to differentiate between having a right to create people, as only marriages do, and NOT having a right to create people, as same-sex couples and siblings and unmarried people do.

    For all the insistence that marriage and procreation are separate and unrelated, there is absolutely no one who would accept a solution that banned same-sex couples from creating children, even if we called their unions marriages and declared them equal to man-woman marriages. Such a solution would be unacceptable to me because it would imply that marriage did not approve of creating children, but it would also be unacceptable to same-sex marriage advocates, because they demand to be approved to create children. They only say they are separable when people object to 3PR, and lie that they would be fine with a ban on 3PR. They are not separable and they wouldn’t be fine with a ban on 3PR.

  50. Chris says:

    David Hart is wrong, marriage is the right to create children,

    Manny,

    Does it matter at all to you that you appear to be the only person in the world who believes this?

    How many people, here and at other blogs I’ve seen you post at, have to tell you that this isn’t true until you stop making this claim?

    How do you explain this? Do you believe that the majority of people who have lived in the world are and were wrong about what marriage really is?

    It would be one thing for you to say that you think marriage should be equivalent to the right to procreate. I would still think that’s a strange idea of marriage, but everyone’s entitled to strange ideas. But what’s beyond the pale to me is your repeated insistence–which you never back up with evidence from the historical record–that This Is What Marriage Is and Always Has Been. Every time, you get a litany of people who have never even heard of this concept of marriage before, yet somehow that never seems to make you stop and think that maybe your idea of marriage is at all uncommon.

    Would any amount of evidence be enough to convince you that marriage is not about the right to procreate?