Does gay marriage undermine the mother-father norm? An attempt to clarify the question

04.07.2013, 7:53 PM

By far the most common secular objection to gay marriage is that it violates the needs of children for mothers and fathers.  According to this argument, the human child has a deep need – many would say (I would say), a right – to love and be loved by the two specific individuals, the man and the woman, whose sexual union brings the child into the world.  The French feminist philosopher Sylviane Agacinski refers in her writing to the “dual origin” of each human child; she points out that this fact of our origin is of profound importance, both personally and socially; and she insists that society, insofar as possible, should respect it and should do nothing to deny or efface it. Gay marriage, in this view, is (among other things) such a denial and therefore should not be permitted. 

 I have made this argument, in a book and in many public venues.  The lawyers opposing gay marriage this month before the U.S. Supreme Court, in the DOMA and Prop 8 cases, are resting their case largely on this argument.  And though I have changed my position on gay marriage, I still believe that the argument contains an important core of truth that deserves our attention and respect. 

 Most supporters of gay marriage profess to see nothing – not even the tiniest shard of evidence or theory – to support this argument.    

 We are left, then, with two ships passing in the night. The argument that means the most to one side appears to be literally unrecognizable by the other side. In my view, this fact goes a long way to explaining the regular assumption by nearly all participants in the debate of the bad faith of their opponents. (“If they are saying something that self-evidently false, they must be willing to lie and/or motivated by ill will.”)  Thus also the endless angry repetition of the same talking points, as if saying something (“Children need mothers and fathers!” “We allow adoption and we allow infertile couples to marry!”) for the 1001st time is going to achieve something that saying it for the 1000th time did not.

 I do not aim, in this post, to rehearse these talking points yet again.  But I do aim to try to frame basic question about gay marriage and children’s rights somewhat differently – perhaps more precisely – in the hope of producing, not agreement and not the vanquishing of one of these arguments by the other, but simply a bit more clarity regarding the key points disagreement.

 Here is my attempt at a more focused question: 

At what precise point does state recognition of gay sexuality and family formation deny the needs of children to the degree that requires the denial of state recognition?  

 OK, if you’ll accept at least provisionally that this may be a better way of asking the question, let’s now try to answer it. 

 It seems to me that there are six possible answers, and that as a logical matter anyone who asserts a conflict between gay marriage and children’s needs has to be able to choose, and defend, one of these six as his or her Rubicon, or point of decision.  Here they are.  

 1.         An individual engaging in homosexual conduct.  

 The classic Christian teaching – which is still the teaching of the Catholic Church, and which informs much of modern western history on this question – is that homosexual conduct is intrinsically evil because it is sterile; that is, it is not aimed at, or open to, conceiving a child.  Because homosexual behavior normatively insults, and functions as a potential alternative to, procreative sexual and conjugal behavior, homosexual acts in and of themselves should be treated by society as illicit, unworthy of legal protection or state recognition.  Until fairly recently in Anglo-American societies, homosexual conduct was a crime, and this line of reasoning is a main reason why it was criminalized.  So, it’s perfectly pedigreed, and a deep part of Christian and western thought, to view homosexual conduct in and of itself as an affront to the needs of children.        

2.         A gay or lesbian couple living together. 

The homosexual pair-bond takes this alleged insult and alternative one step further.  In this case, the sterile alternative to male-female procreation actually assumes a distinct social form that explicitly mimics, as it were, the male-female pair-bond, which of course is the basis of the mother-father married-couple home.  So here the insult to the mother-father norm presumably becomes sharper and deeper.  In this view, then, two homosexuals living together as a sexually pair-bonded couple clearly undermines the needs of children for mothers and fathers.   

3.         A gay or lesbian couple getting married.

In this case the conflict with the needs of children becomes even more pronounced, since in this case the state bestows a formal recognition on the homosexual pair-bond, a kind of societal endorsement and legal protection that heretofore had only been available to opposite sex (and therefore typically procreative) couples.  Now, sterile sexual conduct that is inconsistent with mother-father procreative norms is not only allowed to exist as non-criminal behavior; and not only allowed to mimic the male-female family household; but is also granted a kind of state seal of approval. 

4.         A gay or lesbian married couple raising a child who was born from a previous heterosexual relationship of one of the partners.

Now, into this same non-mother-father family form, we introduce a child – a child who, by definition, is being raised by at least one person to whom he or she is a biological stranger.  Now, the non-fertile, non-male/female alternative family form is complete: we have two parents (some would say, “parents”) and a child, with a marriage license. 

 5.         A gay or lesbian married couple adopting a child.

 The same as number 4, except that in this case the child is adopted, and therefore a biological stranger to both parents. 

 6.         A gay or lesbian married couple raising a child who was born via egg or sperm donation and/or surrogacy (“third party procreation”). 

 The same as numbers 4 and 5, with one major exception – in this case, there is a proactive decision, taking by a couple in a state-sanctioned pair-bond, intentionally to bring into the world a child who by definition will not be raised by the male and female whose bodies biologically made the child.       

 OK, as I said, I think these are logically the only six choices available to us.  So it’s time to choose.  If we believe that gay sexuality and gay family formation at some point undermines children’s needs for mothers and fathers, at what precise point does the undermining, the insult to the mother-father norm, reach the degree that requires a good society to withhold legal tolerance and recognition? 

 Let me personally cut to the chase. For me, the answer is 6. 

I believe that homosexual conduct is benign.   I believe that gay and lesbian couples living together are benign.  I believe that gay and lesbian couples should be permitted to marry.  I believe in the permissibility (especially given the alternatives) of gay adoption.  I don’t like our high rates of divorce and family fragmentation one bit, and have spent much of my life (and expect to continue to do so in the future) pushing for ways to reduce unnecessary divorce and slash our unconscionably high rates of family fragmentation and non-formation, but since we don’t outlaw divorce, and since we don’t outlaw unmarried couples having children or breaking up with their lovers and co-parents, I don’t see the grounds on which we would allow reconstituted families for all couples except same-sex couples.  

I believe these things about numbers 1-5 for two larger or connecting reasons.  The first is that I view orientation as fairly hard-wired.  The evidence cross-culturally and biologically suggests to me that the heterosexual project, if I can call it that, is fairly stable, secure, and deeply rooted in the human record experience.  Letting a small fraction of our fellow citizens conduct themselves homosexually, form same-sex pair bonds, marry, adopt children, and form stepfamilies does not, in my view, threaten the fundamental heterosexuality of the universe; there isn’t likely to be seepage or leakage from straight to gay; and therefore these sexual and familial acts do not threaten the needs of children (in particular the needs of the children of the 95 or 96 percent of us who are not gay) to the degree that requires the criminalization or stigmatization of homosexual conduct or the denial of legal recognition of same-sex couples and their children.  The second reason for this conclusion is my sense of what constitutes basic fairness: We have to find ways to live together and treat each other with a modicum of fairness and decency. 

As for number 6, I pick that as my point of conflict, my line to draw, my Rubicon, because I think there is something distinctively harmful (not that everything about it is harmful, but I believe it always contains a portion of harm) about intentionally, as a proactive deed of family formation, bringing into the world a child who by definition, as a result of premeditation, will be radically estranged from either her biological mother or her biological father.  Such an act clearly does, in my view, conflict with children’s rights. 

What is the best, the most effective, way for me, David Blankenhorn, to speak and act on this issue?  Does my conviction on this issue require me, as an ethical matter, to oppose gay marriage?

I don’t think so, and here’s why.  All persons today – gay or straight, coupled or single, married or unmarried – are already perfectly free to found families relying on third party procreation.  The practice is entirely licit and mainstream. Nothing and no one is preventing it from taking place.  More straight people than gay people currently use it.  By almost any reasonable measure, permitting gay marriage will do nothing to enhance the right of anyone to engage in this activity, and prohibiting gay marriage will do nothing to restrict that right, since the right is already all but absolute.  Gay marriage has no more causal connection to this issue than numbers 1 or 2 above (engaging in homosexual conduct or being in a same-sex couple), which is to say that, apart from sexual iconography, it has almost no relationship at all. 

In my mind, the best way to address this difficult issue is to address it directly, first by pushing for laws banning donor anonymity, and second by bringing together a broad coalition of concerned people (including gay people and gay married couples) for serious ethical and legal reflection, perhaps leading to shifts in public opinion and/or legal changes.  Anchoring my concern about this issue in opposition to gay marriage seems to me to be not only largely beside the point, but also possibly counter-productive, since so long as this issue is connected in the public mind to gay rights, so long will the issue be all but untouchable by policy makers and others.  The task before us, in my view, is to engage in serious ethical reflection on the activity itself, irrespective of whether the people who do it in any one case are gay or straight, married or single.  In other words, to address this issue effectively, we have to disenthrall ourselves.  This issue should not be about gay rights any more than straight rights; it should be about the meaning (to the degree that we can agree on the meaning) of the dual origin of the human child. 

I am not insisting that this analysis is correct.  I’m sure it has all kinds of weaknesses.  But I am suggesting that anyone who finds a conflict between gay sexuality and family formation on the one hand, and the needs of children on the other, needs to state clearly those precise sexual circumstances and living conditions in which the conflict emerges to such a degree that state recognition is unwise.  That is, I am suggesting that people who believe that a conflict exists need to spell out the coflict specifically, as I’ve tried here to do for myself, in the context of the range of logically possible answers, instead of simply repeating at the level of broad generalization that gay marriage is wrong because children need mothers and fathers.


50 Responses to “Does gay marriage undermine the mother-father norm? An attempt to clarify the question”

  1. mythago says:

    Most supporters of gay marriage profess to see nothing – not even the tiniest shard of evidence or theory – to support this argument.

    Which argument? That biological parenthood means same-sex marriage is evil? That there is, or should be, some connection between biological parents and their offspring? If you’re going to exaggerate and play Golden Mean with your opponents’ arguments, it would be helpful to set forth exactly which argument you mean; your opening paragraph is not clear.

    Sadly, a great deal of the support in the LGBT community for donor anonymity comes directly from the harassment and unfair treatment of same-sex couples that’s happened when donation or adoption *is* ‘open’ or ‘keeping the other person in the child’s life”.

  2. Terbreugghen says:

    David states that, “I believe homosexual conduct is benign.” epidemiology suggests this is not the case. What do you, David, personally know about homosexual conduct that leads you to assert that it is benign?

  3. Teresa says:

    Thus also the endless angry repetition of the same talking points, as if saying something (“Children need mothers and fathers!” “We allow adoption and we allow infertile couples to marry!”) for the 1001st time is going to achieve something that saying it for the 1000th time did not.

    David, although your description of #1 is thin and somewhat reductionist, I struggle to see how espousing this position (which I do) will not simply be the 1001st time of saying the same thing. It is belaboring a point that persons can repeat in their sleep.

    At the end of the day, game’s end, there will be no meeting-of-minds on this issue for those of us #1′s and any of the other positions … at least, in my opinion.

    I will watch with interest as this thread develops your question.

  4. maggie gallagher says:

    David, I don’t view this as the main question, but what in your view is the evidence that sexual orientation is stable and hard-wired?

    I know the evidence on marriage as a cross-sexual union.

    What is the evidence on oreintation on which you are basing your claim?

    There are human societies that have zero evidence of homosexuality. Perhaps we can backwardly import to them the claim the they have gay people because we believe it.

    But what has persuaded you this is true?

  5. Matt N says:

    Mythago: “Sadly, a great deal of the support in the LGBT community for donor anonymity comes directly from the harassment and unfair treatment of same-sex couples that’s happened when donation or adoption *is* ‘open’ or ‘keeping the other person in the child’s life’.

    Mythago, I’ve been mulling over a post on my family’s experience with precisely that for quite some time now. Do you mind if I mention your comment in such a post?

  6. David Hart says:

    Given the costs of surrogacy, this represents a concern, primarily, for lesbian couples. First of all, there is no way to correlate this to marriage. Presumably, committed couples are having children in this fashion – married or not. That being the case, it may be the very reason to support marriage equality. Marriage provides stability and security for the child while including arrangements for custody and child support in the event of divorce.

    And who claims that a committed gay or lesbian couple who want to have children aren’t good parents int he first place? Compared to whom? Bristol and Levi?

  7. David Hart says:

    Ms. Gallagher writes:

    … what in your view is the evidence that sexual orientation is stable and hard-wired?

    There are human societies that have zero evidence of homosexuality.

    Please. Let’s have a lecture on the Aka and Ngandu which would have more logical fallacies than are apparent in Doug Mainwaring’s rather mediocre intellect. My only surprise is that this didn’t make it into one of the more esoteric amicus briefs. Apparently, there are no gays in Iran or Saudi Arabia either. Maybe they have people “who sometimes experience same-sex attraction or SSA.” Give it a rest

    Aside from a mountain of evidence including twin studies and the male sibling effect (to name just two of the many), there are over 15 million gay people in the US. Before he recanted, Spitzer was unable to locate a couple hundred who would claim to have changed their sexual orientation.

  8. mythago says:

    @Matt N., not at all.

    @maggie gallagher, I am baffled at this idea that there are societies where everyone is 100% heterosexual. This is particularly so in a society like the US where men who regularly have sex with men will insist, with all seriousness, that they are completely straight.

  9. Phil says:

    David, I don’t view this as the main question, but what in your view is the evidence that sexual orientation is stable and hard-wired?

    I can’t speak for David, Maggie, but it seems safe to infer that, since you are bringing the question up, then you don’t view the hard-wiring of sexual orientation as a settled matter.

    Perhaps, Maggie, your question arises from a different concept of what “orientation” means? In my view, for example, a man who has sex with only women his entire life could still be a homosexual man if he is primarily physically attracted to men. (And, in theory, a man who has sex with only men could still be heterosexual in my book if he is primarily physically attracted to women.) I’ve found many social conservatives take issue with a complete disconnection between the concepts of sexual
    orientation and sexual behavior.

    But if you are working from a similar definition of “orientation,” them perhaps you could explain what kind of evidence you would consider sufficient? Multiple professional organizations have concluded that there is little to no efficacy in therapies intended to change sexual orientation, and you are undoubtedly aware of that.

    Would it be helpful to point out, Maggie, that the vast, vast majority of people on this planet consider their own sexual orientation to be innate? Surely you wouldn’t disagree that that is true: with very few exceptions, humans believe their personal sexual orientation is innate.

  10. ki sarita says:

    Measures to limit ART are almost certainly doomed, and in fact they were the pre-requisite for gay marriage to even be considered. If they hadn’t become accepted, my belief is there would have been no gay marriage on the table in the first place.

    If society begins to take biological parenthood more seriously (unlikely anyway, because most people don’t really even think about it until it applies to them) as something to support- it will be too late to really change anything because people will say “but what about gay married couples, then they won’t be able to have kids”

    in other words these are too mutually reinforcing aspects of the same movement.

  11. Diane M says:

    I consider #5 – adopting a child – a positive social good.

    In terms of remarriage, while I support avoiding divorce, I also support the idea that it is good if divorced couples form lasting relationships after their divorce. So allowing same sex couples who have children from previous marriages to marry is good for children.

    @Teresa – I am not 100% sure what you are asking, but I would suggest that the point is that even if we believe children should have a connection to their own biological mother and father, it makes no difference to that if we allow same sex couples to have sex, be partners, or even marry. Those behaviors do not stop a child from having a connection to their own biological parents.

    Adoption, of course, means not having a connection to your biological parents, but for children who for some reason can not have a connection to their biological parents, it is a blessing.

    Remarriage does not stop a child from having a connection to their biological parents. While avoiding divorce would be ideal, it is not always possible.

    So I think the argument David Blankenhorn is making is that even if you believe that children have a right to their own biological mother and father, allowing same sex marriage doesn’t interfere with that relationship – except in the case of assisted reproduction.

    And rather than fighting to outlaw same sex marriage, he is suggesting outlawing assisted reproduction in general.

    So you or other conservatives could personally believe that same sex relationships were wrong or bad for you. However, allowing them would not interfere with a child’s ability to have a connection to its biological mother and father.

  12. Kevin says:

    “By far the most common secular objection to gay marriage is that it violates the needs of children for mothers and fathers. According to this argument, the human child has a deep need – many would say (I would say), a right – to love and be loved by the two specific individuals, the man and the woman, whose sexual union brings the child into the world. “

    Let’s keep in mind that a flawed premise usually leads to a flawed conclusion. Same-sex marriage doesn’t violate whatever rights children have: it’s about two adults creating a legal bond. They may or may not be raising children.

    A childless married gay couple can’t possibly be denying any kind of rights to children. But what about single parents? Divorced parents? Aren’t they the real perpetrators of denying supposed rights of children to their biological parents? I would hope I don’t have to explain but just in case, single parents may or may not have any interaction with the co-parent of their child(ren). But they certainly live in a separate household, by definition. That alone diminishes the parenting “rights” of children, according to the premise. Divorced parents also live in separate households, with the same result.

    If children have a right to be raised by their biological parents, why are we talking about same-sex marriage, where the issue lies with single parenting, same-sex parenting and divorced parenting?

    It is hugely over- and under-inclusive to discuss the biological parenting rights of children in terms only of same-sex marriage. Many if not most same-sex married couples will never raise children. There are far more single parents and divorced parents than same-sex couple parents.

    So I ask, what’s the purpose here? Why is there a discussion of the parenting rights of children that excludes single parents and divorced parents, and then needlessly surrogates same-sex married couples for same-sex couples who parent?

  13. DR84 says:

    Points 2-5 could also be made about relationships that are not gay/lesbian nor homosexual in any way. In point 6 it was explained that although that may be something people in gay/lesbian relationships pursue, it is not only people in gay/lesbian relationships that pursue artificial insemination and surrogacy options. Which is quite true. It is also quite true that people who are not in a gay/lesbian relationship could have families, raise children, in all of those same ways. Two men or two women who are say friends or siblings could also adopt children or bring them into the relationship from a previous relationship. There is no reason their relationship must have any sort of homosexual component. Seems to me if homosexual relationships are essentially reduced out of point 6, they are reduced out of points 2-5 also.

    I did note the word marriage was used, but I am at an absolute loss to understand how a relationship between two men that are gay together can be a marriage, but one between two men who are friends, brothers, etc. cannot be. Let alone how the gay relationship is somehow suitable for raising children in more so than a relationship between men or women that has no homosexual component.

    In regards to point 6, perhaps the solution is banning these practices? The ones that ultimately involve someone having to pay the other (biological) parent to go away and not take on their parental responsibilities. If a man got a woman pregnant, with the upfront agreement that he would give her money and she would turn the baby over to him. Is that not buying/selling a human? Did we not already figure out that such practices are morally abhorrent?

  14. annajcook says:

    I am at an absolute loss to understand how a relationship between two men that are gay together can be a marriage, but one between two men who are friends, brothers, etc. cannot be.

    As someone who is in a marriage relationship with my wife and ALSO platonic friends with many women, I would be happy to explain why my marriage relationship is different than the relationships I enjoy with my friends who are women and/or my sister.

    However, many many same-sex partners have spoken and written at length about this distinction. So … if you’re still at a loss to understand it after listening to their testimony I’m not sure my own version of events will help.

    Let me know if you would find my own explanation useful.

  15. R.K. says:

    At what precise point does state recognition of gay sexuality and family formation deny the needs of children to the degree that requires the denial of state recognition?

    David, to the six possible answers, may I add one more:

    The culture using the same term (or more specifically, attempting to force the culture to use the same term) to refer to the state-recognized gay couple as it does to the state-recognized heterosexual couple, and thus pretending there is no difference.

    I won’t get a chance to respond to any replies till this evening. So if we hit 50 comments by then so be it.

  16. annajcook says:

    ki sarita writes:

    Measures to limit ART are almost certainly doomed, and in fact they were the pre-requisite for gay marriage to even be considered.

    You might be interested in Michael Klarman’s history of same-sex marriage activism. While queer people with children from previous relationships were definitely one group of folks seeking legal recognition of equality — having suffered historically in custody battles when their sexual orientation was held against them — ART really does not play a major role in the desire for marriage rights for the majority of same-sex couples.

  17. Kevin says:

    “The culture using the same term (or more specifically, attempting to force the culture to use the same term) to refer to the state-recognized gay couple as it does to the state-recognized heterosexual couple, and thus pretending there is no difference.”

    I don’t think using the same term for something implies there are no differences, just that the differences aren’t substantive enough to require different labels. In law, there is no need to distinguish between same-sex couples and different-sex couples, for the purposes of handing out marriage licenses, or between same-sex married couples and different-sex married couples, for the purposes of government policy.

    I’m weary of playing what appears to have become a game of etymology, rather than a more substantial discussion of social policy and law.

    There are countless other examples of things that are different but fall under the same label. To offer but one: California and Maine couldn’t be more different but they’re still both “states” for the purposes of federal policy and law.

  18. nobody.really says:

    A. Marriage promotes a variety of benefits, including mutual aid pacts. Society benefits from people joining mutual aid pacts – whether or not those people also reproduce or raise kids. So a lack of children does not undermine the benefit of marriage to society (and it CERTAINLY does not undermine the benefits of marriage to the people getting married).

    B. The flip side of that argument, however, matches Blankenhorn’s Argument #6. The focus of marriage is not solely about kids; ergo, society can regulate reproduction and child-rearing without depriving people of the benefits of marriage. For example, I am not aware that there is any prohibition on society regulating (and even prohibiting) reproduction via human cloning — even by people who are legally married. Similarly, I am not aware of any prohibition on society regulating other forms of assistive reproduction – even when used by legally married couples – and even if those couples (such as same-sex couples) could not reproduce otherwise. In short, marriage does not guarantee reproduction rights.

    C. I’ll go further and offer a conceptual embrace of Blankenhorn’s Argument #5: Where adoption is concerned, I’m open to reviewing empirical evidence on the importance of having one parent being biologically related to a child, and evidence of the importance of being reared by both a male and female parent. In general, kids should be put into circumstances that promote “the best interest of the child.” Proof that a child best flourishes in a household with a biologically-related parent, or that kids do better in households with both male and female parents, or WHATEVER, merely becomes one more factor to consider when evaluating adoption placements. No study is going to demonstrate that a child does best being reared by a biological parent if that parent is serving a life term in prison, for example. There are always countervailing considerations.

    In short, I want to dispose of two arguments – the argument that says, “Regulating/banning assistive reproductive technology would constitution undue discrimination against married same-sex couples,” and the argument that says, “We can’t grant state recognition of same-sex couples, ‘cuz then we’ll be powerless to regulate assistive reproductive technology and adoption.” I’m agnostic about if and when we regulate assistive reproductive technology and adoption. I merely want to emphasis that state recognition of same-sex marriage is consistent with banning, regulating, and/or deregulating reproduction and child-rearing.

  19. annajcook says:

    nobody.really writes:

    the argument that says, “Regulating/banning assistive reproductive technology would constitution undue discrimination against married same-sex couples”

    I would like to have someone (anyone!) point me toward this argument as some sort of consistent, accepted pattern on the marriage equality side. I want examples. Because the queer folks I socialize with, and the reading I do, do not make the argument that having a serious ethical discussion about regulating ART is somehow discrimination against same-sex couples as long as same-sex couples are treated on par with opposite-sex couples. That is — as David B. suggests — if we’re going to regulate surrogacy, then we regulate surrogacy and everyone needs to follow the same rules regardless of sexual orientation or sex of partner.

    I do not hear ANYONE on the marriage equality and/or queer rights side arguing that such regulation is tantamount to anti-gay discrimination. I’m willing to believe that someone out there is making that argument (someone is always willing to make any argument), but I feel like if it were a central tenant of the marriage equality movement and the queer rights movement generally, I’d have come across it by now.

    So examples, please, those of you arguing that this is somehow a pervasive thing.

  20. Wayne Wilkinson says:

    The entire premise of this post reeks of totalitarianism. The assumption that in 2013 it is acceptable to include the criminalization of homosexual activity as a respectable position is more worthy of Uganda than the United States. It is certainly uncivil, though I suppose gay readers are expected to thank the Massa for not wanting to put us in prison.

  21. Hector_St_Clare says:

    Re: The entire premise of this post reeks of totalitarianism.

    You appear to be rather unaware of what ‘totalitarianism’ means.

    Re: The assumption that in 2013 it is acceptable to include the criminalization of homosexual activity as a respectable position is more worthy of Uganda than the United States.

    Sigh. Would you actually like to try, um, *reading* Mr. Blankenhorn’s remarks, before you blurt out a response? He is a *supporter of same sex marriage*. That might save us all some time. Thanks.

  22. Kevin says:

    “Keller in the NY Times: About the Children”

    I sometimes lose track: are we still pretending that marriage and its mischievous stablemates, adultery and divorce, have anything whatsoever to do with the needs of children, rather than adults?

    I know there was a phase when the anti-gays were arguing that marriage is all about children, or creating them, or something. The latest argument I’ve seen is that gay people can’t marry because the government needs to have a uniform definition of marriage or uniform treatment of married and unmarried gay couples? I draw that from the two recent oral arguments at SCOTUS. Are these the latest arguments against same-sex marriage?

  23. Mont D. Law says:

    (the argument that says, “Regulating/banning assistive reproductive technology would constitution undue discrimination against married same-sex couples”)

    It would constitute undue discrimination if you constructed bans and restrictions that only limited the to married same sex couples to adopt or use ART.

    (Where adoption is concerned, I’m open to reviewing empirical evidence on the importance of having one parent being biologically related to a child, and evidence of the importance of being reared by both a male and female parent. In general, kids should be put into circumstances that promote “the best interest of the child.” )

    How will you square that with the fact that the law doesn’t do that now? It is in the best interest of an adopted child that their parents don’t divorce without fault. Yet adoptions are not voided if the adopted parents divorce for any reason or none. You seem to be willing to take a flyer on straight parents but not gay and lesbian parents.

    Also too, if the studies show lesbians have better outcomes with adopted children will you advocate privileging them over straight couples?

  24. Wayne Wilkinson says:

    Hector st. Clare, I know very well that Blankenhorn supports S
    Marriage equality. Nevertheless he presents as a possible point of response, such animus against homosexuals that one could think they should be imprisoned. Actually, I suspect that most opponents of same sex marriage would be happy to have homosexuals imprisoned or at least liable to be imprisoned. Many of the opponents of same sex marriage bitterly opposed the repeal of sodomy laws and the Supreme Court ruling in Lawrence v. Texas.

  25. David Hart says:

    Wayne:

    I hear you but here’s the thing. David not only changed his position but did so very publicly with no excuses. How many people do you know that are willing to say “I was wrong?”

    May I suggest that you cut him some slack. Virtually every amicus brief in support of marriage equality at the Supreme Court has referenced David’s piece in the New York Times. That’s not to say that we should not hold DB accountable – just back off a bit. He’s earned that.

  26. nobody.really says:

    (the argument that says, “Regulating/banning assistive reproductive technology would constitute undue discrimination against married same-sex couples”)

    It would constitute undue discrimination if you constructed bans and restrictions that only limited … same sex couples….

    Yes, I suppose it’s possible to apply any law in a discriminatory fashion.

    Here’s my point: Various people argue that society is justified in regulating assistive reproductive technologies. If these regulations would promote a bona fide governmental purpose, then the laws would withstand an Equal Protection challenge even though the regulations may have a disparate impact on members of a protected/suspect class. And thus, I dispute the legal foundation of the argument that we need to oppose same-sex marriage as a means to opposing the use of assistive reproductive technologies. Yes, it may be politically difficult to implement the relevant regulations – but those difficulties have nothing to do with same-sex marriage.

    (Where adoption is concerned, I’m open to reviewing empirical evidence on the importance of having one parent being biologically related to a child, and evidence of the importance of being reared by both a male and female parent. In general, kids should be put into circumstances that promote “the best interest of the child.” )

    How will you square that with the fact that the law doesn’t do that now? It is in the best interest of an adopted child that their parents don’t divorce without fault. Yet adoptions are not voided if the adopted parents divorce for any reason or none. You seem to be willing to take a flyer on straight parents but not gay and lesbian parents.

    To clarify: When an adoption agency is choosing among potential placements for a child, I want the agency to consider any fact that is relevant to promoting the best interest of the child. That is, I want social science to trump social mores – whether we would characterize those mores as “bigotry” or “political correctness.” If research shows that having a male/female couple provides a more nurturing environment, I want that fact considered – even if it might offend some people’s sensibilities. If research shows that having adopted parents of the same race as the child is a relevant factor, I want that considered – even if it might offend some people’s sensibilities.

    I am not aware that adoption agencies have any control over divorce law, so the “no fault divorce” hypothetical really doesn’t apply. But IF parents get divorced AND a child ends up in foster care AND the couple later gets back together AND wants to regain custody of their kid AND this placement would be in the best interest of the child, I see no reason why the agency would not place the kid back with her biological parents.

    Here’s the harder hypothetical: What if the divorced parents get back together and want to regain custody of their kid – but evidence indicates that the kid would be better off being adopted by that nice Bill and Malinda Gates couple that’s just submitted an adoption application? If research shows that parental wealth is a relevant factor to determining the best interest of the child, I want it considered – even if it might offend some people’s sensibilities.

    Also too, if the studies show lesbians have better outcomes with adopted children will you advocate privileging them over straight couples?

    Yes. Again, when an adoption agency is choosing among potential placements for a child, I want the agency to consider any fact that is relevant to promoting the best interest of the child.

    To further clarify, the “privilege” that would arise from lesbian status would not be a trump card, establishing a rule that all lesbian couples provide superior homes than any male/female or male/male homes. Rather, the privilege would simply be one more factor for an adoption agency to consider. All else being equal, research might suggest an abstract lesbian couple might provide the more nurturing home than an abstract male/female couple. But adoption agencies don’t place kids in abstract homes; they place them is specific homes. A lesbian couple with a chemical addition problem may not rank well compared to a male/female couple that is clean and sober, regardless of what an abstract study says.

    In contrast, I’ve read that some Catholic adoption agencies seem to regard heteronormality as a trump card, rendering ALL male/female couples preferable to ANY male/male couple and ANY female/female couple, regardless of other factors. I don’t want ideology to become more important that promoting the best interest of the child.

  27. Kevin says:

    @Greg

    Since when do married couples have a right to children? Could you expand on that premise? What evidence is there that leads you to that conclusion?

    “Children have a right to the adults who made them, not the other way around”

    Since when do children have a right to the adults who made them? How does that right manifest itself, if it’s true? It seems to me that men, especially, are free to walk away from children after divorce, so long as they meet legal obligations for financial support. Is that what you meant by a child’s right to the adults that made them, access to financial support?

    “Either draw the line at gay marriage or make peace with the radical redefinition do every social institution as we know it.”

    I think this is a false choice, and an improbably forecast. Support it with evidence, or apologize to gay-lead families who are harming exactly no one, and in many cases, created by inept and irresponsible straight people.

  28. YYZ says:

    D84 writes “Is that not buying/selling a human? Did we not already figure out that such practices are morally abhorrent?”

    Yep. Selling of sperm and eggs should be outlawed. And what about the rights of the child? As Olivia Pratten (a former blogger here) once wrote “People who are infertile grieve not being able to pass on their lineage to their children. I grieve the same thing: not knowing the person who gave me mine.”

    http://familyscholars.org/2010/05/30/why-biological-ties-matter/#comments

  29. lilly says:

    You can’t outlaw sperm donation, because people have a right to reproduce and it isn’t limited to only fertile heterosexual couples. Individuals, married and single, straight and gay, have a right to bear and beget a child however they want and no one can stop them. Banning sperm donation or other kinds of ART would totally discriminate against gays, because only heterosexual couples would be allowed to have children.

  30. Diane M says:

    @lily – “You can’t outlaw sperm donation, because people have a right to reproduce”

    I don’t think people have a right to reproduce. We have a right to have sex and control our own bodies. For some people that leads to reproduction.

    I don’t know of any country that outlaws sperm donation, many other countries limit it. I favor sensible limits on how many children an individual man can conceive. Countries can also pass laws limiting assisted reproduction to married couples.

    And while you can’t prevent women from getting sperm from men, you can pass laws making men liable for supporting their biological children unless the men go through approved channels to donate sperm. (This is happening now.) This effectively would make men not want to donate sperm in many cases.

  31. David Hart says:

    I understand the concerns over surrogacy and sperm donations. These concerns apply to traditional marriage, same-sex marriage and even unmarried individuals.

    It seems to me that this provides enough diversity to preclude the matter from being part of a discussion of marriage equality. We can have a far more constructive conversation about ART when it is unrelated to LGBT equality.

    When I say that I understand the concerns, that does not mean that I understand the issue. I don’t. One of the reasons that I don’t is because it gets conflated into discussions over gay marriage.

  32. Kevin says:

    “I don’t think people have a right to reproduce.”

    I think the government would have a hard time criminalizing reproduction. In essence, then, one does have a right to reproduce. Certainly the government has some authority to regulate reproduction, but it surely falls within a privacy sphere, like abortion and consensual sex.

    Government has more say in what happens to kids, who has to take care of them, etc. For children born of ART, the government could conceivably require that children be informed of who their biological parents are.

  33. Kevin says:

    “One of the reasons that I don’t is because it gets conflated into discussions over gay marriage.”

    Pity same-sex marriage: it has been kidnapped and is being held hostage by any number of “horribles,” including ART, polygamy, and bestiality, all of which are inevitably legalized or rendered monstrous, when same-sex marriage is legalized.

  34. lilly says:

    @Diane M: “I don’t think people have a right to reproduce. We have a right to have sex and control our own bodies. For some people that leads to reproduction.”

    Well, people have a right to try to have children, and access to medicine if they are infertile, including access to the raw materials they need if they can’t have children by having sex or don’t want to have sex to have children. Even heterosexual couples may not be able to have children or may not want to pass on an inheritable disease. You seem to be saying that only healthy heterosexuals have a right to have children, or at least only people willing to be “heterosexual for a night,” but deceit is a bad way to found a family and one night stands subject women to risks of STD’s and forces gay men to get someone pregnant they don’t love by deceit. It’s much safer and less cruel to use willing donors who know they are helping someone have children, and who won’t be involved in raising the children. There certainly is a right to have children, and any laws or impediments designed to prevent lesbian or gay men or single people from becoming parents without having to deceive or risk STD’s violates the equal protection clause of the Constitution. Having children is not a right of healthy straight people only, it is a basic right of everyone.

    ” you can pass laws making men liable for supporting their biological children unless the men go through approved channels to donate sperm.”

    Just because someone provided DNA does not mean they are needed to support a child. Again, straight people aren’t forced to have an extra interloper in their life undermining their relationship to their child. Gay people shouldn’t be either.

  35. nobody.really says:

    “I don’t think people have a right to reproduce….”

    Well, people have a right to try to have children….

    In other words, “Don’t you oppress me!

  36. Schroeder says:

    Haha, nobody.really, I thought of the same clip!

    “Suppose we say that you can’t have babies, not having a womb (which is nobody’s fault, not even the Romans). But you can have the right to make babies.”

  37. lilly says:

    It’s more than just having a right to make babies, the right means actually making babies using donor sperm or eggs or both and using surrogates or even a man having a womb transplant or a woman making sperm when that becomes possible. It is not a joking matter, you can’t force people to be straight and marry to have babies, people can make babies using ART. It is more important than marriage, marrying is secondary to the right to make babies. It is not good enough just to be allowed to marry another woman if we aren’t allowed to make babies without having to trick a man.

  38. David Hart says:

    Thus thread is now a) bordering on the absurd and; b) completely off topic. ART and marriage equality are unrelated.

  39. YYZ says:

    Lilly writes to me “You can’t outlaw sperm donation”

    Sure, you can if you can prove it is harmful. Here’s what Justice Elaine Adair wrote in the Olivia Pratten case (although it’s now being appealed): “I conclude, based on the whole of the evidence, that assisted reproduction using an anonymous gamete donor is harmful to the child…”

    Or

    See the stats on pg 7-9 on Elizabeth Marquardt’s study called My Daddy’s Name Is Donor. 2x more likely to report substance abuse, 1.5x more likely to report mental health issues

    http://www.familyscholars.org/assets/Donor_FINAL.pdf

  40. Diane M says:

    @lilly This is where I disagree with you:

    “Well, people have a right to try to have children, and access to medicine if they are infertile, including access to the raw materials they need if they can’t have children by having sex or don’t want to have sex to have children.”

    Sperm and egg cells aren’t just raw materials that you can give away to someone and then they make a baby.

    The two people who provide your genes are your biological parents. We use language like “donor” and “curing infertility” because we don’t want to think about what is going on.

    This was going on long before anyone thought legal gay marriage could ever be a reality. Couples who were infertile and desperate went ahead and made babies with third parties and called it donation.

    Because it has been going on for so long, we now have adults who were conceived this way by straight couples. Some of them have mixed feelings about the process. They often feel a connection to their biological parent. Some of them wish they could meet them. Some of them feel bad that their biological parent took money to make them.

    We need to have laws that are the same for gay or straight couples. But we need to talk about what is best for children and figure this out.

    Other countries do have laws in place on this already, laws that were made for straight people. We can make some sensible limits.

  41. marilynn says:

    lilly says:
    04.09.2013 at 5:48 PM
    “You can’t outlaw sperm donation, because people have a right to reproduce and it isn’t limited to only fertile heterosexual couples. Individuals, married and single, straight and gay, have a right to bear and beget a child however they want and no one can stop them. Banning sperm donation or other kinds of ART would totally discriminate against gays, because only heterosexual couples would be allowed to have children.”

    We don’t need to outlaw anything other than failing to be responsible for the children we all create. Everyone should be legally obligated to be answerable to and for all of their offspring by name on their birth certificates as parents. All held to identical standards of care with regard to the physical and financial support of our offspring. No special circumstances where you walk away without formal adoption and no adoption to prearranged individuals. If we prevent people from manufacturing their offspring as a service to childless people the problem goes away.

  42. lilly says:

    Marilynn, if you trying to prevent lesbian and gay couples from having our own babies together you should just say so. If you just want to end anonymity that’s fine, that is what we want too, for our children’s sake they should be able to know that if they want to, when they turn 18. But we don’t always need some random person’s financial support, especially someone who is probably broke and jobless, especially if it comes with a claim on our children and confuses them about who their parents are. The whole point is to avoid the baggage of divorce and ex’s and broken relationships that harm children. You seem to just want to force us to turn to risky anonymous one night stands and lying to people, or wait until we can have biological children together, which might be years away and be too expensive or risky. Until then, lesbian and gay people, single people and infertile people have to use donor material to do what fertile heterosexuals take for granted: have babies together. It’s secondary to marriage, though of course everyone should be allowed to marry also, but you shouldn’t have to marry an opposite sexed person just to have babies, it just leads to divorce and hurts kids and discriminates against gays and lesbians. Making the DNA providers legally obligated to support our children against our wishes violates equal protection, since heterosexuals are not required to use or identify their child’s DNA providers. And no, it isn’t always the “parents” sometimes it’s someone else.

  43. Diane M says:

    @lilly – Marilyn is an activist against donor-assisted reproduction. It has nothing to do with whether you are gay or straight for her.

    She probably has more to say than I do on this, but I want to point out a few things.

    You’re not talking about some random person supporting your child. You are talking about their biological parent. They are not just DNA providers.

    That does not mean you aren’t parents. Adoptive parents are real parents. Their children love them.

    I think we use technology to hide the reality from ourselves.

    If a man has sex with a woman and their birth control fails, he is the child’s parent. He did not intend to make a baby. In fact, he actively didn’t want to make a baby.

    Nevertheless, he the father and he is obliged to support the child. He also has the right to be involved in the baby’s life. After the baby is born, he and the mother can agree to have the baby adopted – and up until the last minute, they can change their mind.

    My point is, the father in this situation is no more genetically related to the child than a sperm donor is to his child. In fact, unlike the sperm donor, he did not want to make a child. So why do we call one man a father and the other one a donor?

    I think we need to start talking about donor assisted reproduction as a form of half-adoption. The donors are biological fathers and mothers who are letting people adopt their children.

  44. mythago says:

    So why do we call one man a father and the other one a donor?

    Because we do not always link biological parenthood to legal parenthood, and because heterosexual couples wanted a way to deal with a husband’s infertility without infringing on his rights as paterfamilias.

  45. Diane M says:

    @mythago “So why do we call one man a father and the other one a donor?

    Because we do not always link biological parenthood to legal parenthood, and because heterosexual couples wanted a way to deal with a husband’s infertility without infringing on his rights as paterfamilias.”

    But when you give a child up for adoption, you lose legal parenthood and keep biological parenthood. The man who gives up the baby is still called a father. The biology is the same.

    And, yes, I think it was a way to deal with the husband’s infertility. I’d add that it was a way to do it without hurting his feelings, since he could have adopted the child and still had legal rights.

  46. Rhonda says:

    I have known a couple of people who called their biological fathers, their donor, and their step father (in one situation) and stepmother((?) in another scenario) their father and/or other parent. The important part of being the parent in these two scenarios was who raised them, not the biological connection.

    My father-in-law was raised by his grandparents and then an aunt and uncle because his father left, then his mother left. While he maintained relationships with his biological parents, his grandparents and his aunt and uncle were the important ones in his life, and if he could have denied his maternal parentage, he would have.

    Please understand that I am not disqualifying biology as import to some people, but it is also unimportant to some people, and who raised them and kissed their boo boo is who is important.

  47. Terbreugghen says:

    @Rhonda:

    My father-in-law was raised by his grandparents and then an aunt and uncle because his father left, then his mother left.

    This describes my own experience pretty closely. This experience has led me to the view that my biological parents failed to honor the same lifelong commitment that they forced upon me, that all biological parents “force” upon their children by necessity and definition.

    In practical terms, I would agree that the important people are the boo-boo kissers. LOL. I honor my (now deceased) grandparents for this reason, always will.

    But I also believe that it is in our long term legal and cultural interest to do what we can as citizens to enable and incentivize heterosexual bond-pairs as lifelong sexually faithful couples (i.e., preserve the unique status of conjugal marriage) because it has been demonstrated (statistically, anyway,) that the biological parents are the best place for boo-boo kissing.

    Not to take away those who “stood in the breech” for children. Blessings to them for stepping into a bad situation to make it better.

    But to intentionally deprive a child of a biological parent’s care? No. not so good, and not what the state should be privileging, supporting or enabling. And again, I don’t think we should be chasing people around to make sure they follow the conjugal marriage script. But I don’t think we should be rewarding going outside that script with benefits and status reserved for those doing the hard work of living within those not always easy limits.

  48. JHW says:

    lilly: If we ban donor insemination and surrogacy, no couple (same-sex or different-sex, fertile or infertile) will be able to use donor insemination or surrogacy. That is not discriminatory. It is not based on any judgment about the moral or parenting quality of any particular sort of couple; it is just a judgment about the merits of a particular means of reproduction.

    Further, there is a striking cynicism in your comments. Apparently, you suggest, if gay people are not allowed to use donor insemination and surrogacy to have children, we will instead just trick straight people into having children with us, and then, after breaking up whatever relationship that was, arrange somehow to raise them ourselves. I do not think it is very likely that people will go this route, and I do not think it would be all that successful a tactic if people did. It is much more likely that those same-sex couples who want children would pursue adoption, which both David Blankenhorn and most commenters here agree should be open to same-sex couples.