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Posted June 30, 2005
re: marriage
Another European state will soon recognize gay marriage. Spain follows the Netherlands and Belgium in granting the status of MARRIED to petitioning homosexual couples.
The argument for gay marriage is simple. Marriage is a contract. It establishes a legal relationship of mutual support between marrieds, granting a bundle of special privileges to each of the other. These special privileges are often important, in medicine and law. The core idea of marriage is a couple living together in sexual congress, with the possibility of producing children within the marriage. It is a stretch to regard homosexuals living together as married, because (historically) homosexual couples themselves don't produce offspring. But since barren heterosexual couples may adopt in most societies, by extension we may regard homosexuals as barren sexual partners, and if the same rights and obligations apply, why not extend the whole concept to homosexuals?
The points made against gay marriage come down to a basic set:
All these points are correct, so far as they go. Gay marriage isn't traditional, and there's little direct precedent for it. That is, to let
gay couples marry is to extend a legal status to homosexuals that only acting heterosexuals have had before. The principles of liberty and equality seem to entail this extension. (It's hard to argue against equality of status and equality of liberty.)
And we certainly don't know all the consequences of gay marriage. It would certainly normalize homosexuality further, and to some degree erode heteronormativity in our society, and likely encourage further innovative contractual sexual relations. Is this bad? Traditionalists say so, but then they say a lot of things that are patently false, so just because they and their books say that this sort of thing is wrong doesn't make it so.
Generally, marriage increases responsibility and responsible behavior. That's one reason divorce among heterosexuals is so high: we prefer obligation-free living to obligation-laden living.
One thing I've notice, though: even among heterosexuals who've dissolved their marriages for reasons of perceived freedom, the bulk of them still accept the responsibilities of parenthood quite readily. What this says to me is that our social bonds to our progeny are stronger than our social bonds to mates. This is genetically understandable, as any evolutionary psychologist would predict.
Whether this is a biologically driven trait is another thing. If it's mainly an adaptive trait arising from the raising of children, then an increase in homosexual adoption might provide a net socially useful feature of the new reform.
Personally, I'm not very interested in marriage as a happiness factor in adult couples. I think the evidence for this is pretty iffy. I'm most concerned about children. One thing not often mentioned when addressing gay marriage and the right of gay couples to adopt children, is the possibility that a rise in this would increase the number of children with stable homes. Having gay couples adopting rather than procreating (and of course lesbian couples can use sperm donation to procreate, and gay men can go outside their marriage to impregnate a willing woman who might give up parental rights) might be a very good thing, indeed. Especially if abortions decrease, either through legal intervention or cultural change.
The principle of equal liberty that seems to entail gay marriage also entails a number of other reforms. Oddly, these other reforms rarely get much play, though they would surely have far more beneficial effects, since they would effect much more of the population. (For evolutionary reasons, we can probalby be confident that heterosexuality will still be the dominant, er, position.)
What does liberty entail, regarding marriage? In America, the division of powers would have the federal government get out of the marriage business as much as possible; it's the several states that are responsible for this level of legal responsibility, innovation, and refinement. And to recognize the liberty of individuals, and yet hold them responsible for their actions, what should states do? Well, they should stop granting marriage licenses (which are pretty much a joke, now, a nuisance tax). Instead, the states should recognize any couple living together in sexual congress as married, if children are present. That is, the obligations of parenthood fall upon those who produce children. Others who willingly take up the care of children should have those same responsibilities. (I will not fill in all the nuances here.)
As far as spousal rights, well, people can contract for any set they so desire. But their ability to control their obligations is limited by the existence of other people, including their children. You may divvy up, in a marriage contract, property any way you can manage to compromise. But when you produce children, your agreed-upon desires may have to be adjudicated by the courts. Parents owe their children sustenance, shelter, education, and a number of other goods. The children have positive rights that can trump their parents' or guardians' liberty rights and contracted-for rights. That's just the way it is. And will always be, as long as children are produced. The evidence does not suggest that this burden on parents is getting smaller, but heavier. (Though I admit: much of it is socialized in the present system, which is surely why we have as many problems with children and youth as we do. And with parents.)
To the socially conservative, I have one offer of compromise, one bone to throw at them. I favor gay marriage. But I think religious people should be able to contract for a more rigorous kind of marriage than most others would want. Here's my bone: marriage ceremonies must not contain language that indicate other rights than are contracted for in the actual (written) marriage contracts. If the couple publicly pledges eternal devotion, then adultery is a breach of contract, and if the contract dissolves, the offending party will lose more at the dissolution. The current lenient default contracts may favor no-fault
divorce, but with special contracts, that would be another matter.
Currently, marriage ceremonies are elaborate obfuscations, ritual fantasies that have no legal meaning. It is the business of legislatures to determine what the the default marriage is. Couples living together and engaging in sex will be said to be married by that default contract. It would be a very open contract, with a minimal set of mutual rights and obligations. If children are produced, then both members of the couple will be bound by parental obligations. As long as abortion is available for women without the consent of their sexual partners, then the male should be able to avoid those parental obligations by the simplest of divorces, the Hit the Road, Jack,
divorce, before the child's birth.
This leaves women in the default contract — or sexually active without any cohabitation arrangement, and thus no long-term contract — at greater risk of the burdens of parenthood. Many people believe this should be closed by law, making the sperm-contributing sexual partner liable. I do not agree. As long as a woman may abort a child without a sexual partner's permission, her status as a free agent is inviolable, and she should accept the risks of that status. What if she doesn't like the risks? Two options: sexual abstinence, or an explicit contracting for marriage. An actual contract — written up by lawyers, and looked over by a judge or a preacher — would seal the male as mate.
This arrangement — with parental rights of the male only entailed by marriage, with a default marriage assumed by the state if the cohabiting couple reproduces and remains cohabiting, and with no public promises made in ceremony that are not made, legally, in a marriage contract above the default one — would have the salutary effects of increasing clarity of rights and responsibilities. It would also, for women, increase the importance of marriage.
It would also be quite compatible with gay marriage. At present, many gay couples have children . . . from previous heterosexual relations. But the non-producing partner has no legally enforceable parental obligations or rights. This is a problem. A gay marriage law would recognize gay couples who specially contract a marriage as able to adopt, including adopt the child of a spouse. This would allow households to remain stable after the death of a gay parent, or in medical emergencies or the like.
Which would be good for the children.
Obviously, I don't have any great fear of an increase in homosexuality. I really don't care what other people do with their sexual organs in the privacy of their own homes. I suspect that this regime would increase homosexual activity by some margin. How much? I don't know. But marriage is also known as a damper on the sexual passions, which would mean that some of the least pallatable behaviors of male homosexuals in America — the amazing promiscuity, for example — would be curbed.
Whether this increases the happiness of partners is another matter. It would certainly change the complexion of the routes to happiness. It would civilize them, restrain them, make them more responsible. I know gay men who should be aghast at the very idea. What should they do? Don't get married.
But I'm not aghast, because I suspect that sexual passions, constrained, are on the whole better for children. And they are the true innocents in all this, and, in a disgustingly cliche sense, it is for them that we must build our marriage laws. Barren sexual couples may be the winners, today, in Spain. But in the future we must all be winners to some degree, with children coming out best.
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