The Ideal Argument (Part 1)

In my opinion, the argument against legal marriage for gay couples to be discussed in this series of posts is the best argument I’ve come across (though, of course :-), in the end, I don’t think it holds up). It can have a 100% secular basis, thus leaving clashing faiths out of it, and, given the premises (I’ll get to that), one can get a good long ways with it in debate and, as the record shows, in a court of law. It goes a little like this (quoting an old opponent):

In the ideal family situation, children are created and raised by their biological parents. The state’s interest in marriages is in promoting the creation of children in that ideal.

It should be noted, while often it isn’t specifically stated, it’s insinuated that this interest is the only interest the state has in marriage; it’s the interest.

From here I’ve got the dance down by heart. This is the place where the proponent says, “Hey, what about all those other infertile couples? Why don’t you restrict them? If this is honestly the state interest, why is it expressed nowhere in marriage law?”

The opponent’s response, in my experience, can come in a couple variations:

1. Necessary Error: The law can’t weed these people out, for any number of reasons (I’ll get to them). These infertile heterosexual couples are taking this legal designation but it’s not meant for them. Some may even think the knowingly infertile couple should be socially shunned and marriages unattended for their theft of the legal classification. Nevertheless, the law can’t weed them out. Why?

a) Privacy. They argue there is a right to privacy that can’t be breached here. You can’t ask about a person’s fertility; it’s too personal. This excuse has a number of failings, and much evidence to show this is not why the state does what it does (and the "ideal" is seemingly not, by their lack of concern for change, what the opponent is honestly after).

i) Data that can rule infertile people out is already taken as part of the marriage licensing process; it’s not private. You give your date of birth and, by that, a woman’s fertility may be absolutely known (a 90 year old isn’t going to be having babies, and the state most often would be burdened if she did).
ii) Medical tests are already a requirement for marriage in some jurisdictions; some have to get blood tests, which may reveal STDs. Talk about privacy issues. And if the opponent then goes to arguing that the to be spouse has a right to know, the same can be reasonably said for fertility.
iii) There’s a very easy work around; the existence of children is a public fact. If these rights are only made for those with children and the reason there’s testing is concern for privacy, marriage could take place as usual to still encourage child production, but state involvement only activates when children come into the family.
iv) If you know many trans folks you'd find a person’s biological sex can be a very private matter as well, and yet that info is the info you’ll be asked to give, and it will be used to discriminate between couples. I know a couple people who’s sex remains a mystery and that’s psychologically quite important to them. Hermaphrodites must be mentioned here as well. Supernatural theories about sex aside, some people are genetically and anatomically between male and female (or neither). Yet their sex is given privacy, forced into an artificial classification, or allowed to be fluid M or F in marriage law, depending upon their sexual orientation.
v) Lastly, tests for fertility are already in place, and required for marriage in some cases; privacy is no barrier to such requirements. As outlined in this post, some couples must prove they are infertile, not fertile, before they can be married. This should be counted as evidence as to what the state’s motivation actually is in marriage.

b) Simplicity: They argue it’s too complicated to write laws that addresses all the variations of infertility. Best to just leave it at a man and a woman and hope most of them caught in the imperfect net are going to have biological children. This has failings similar to the privacy argument:

i) First off, no one is asking for all infertile couples to be caught. The opponent has already settled for imperfection with their sex requirement, and all can agree, if that is the state’s true goal, perfection isn’t possible, but it may easily be better approached, if they honestly want it.
ii) Next, why is this bit of complexity a concern? Have you ever read legal code? It’s complex stuff, even around marriage. A line about the age of a woman is no noticeable difference in complexity, a drop in an ocean, and such a “complex” requirement for age is already in place. Such wouldn’t even require any new forms. Even still, a one line question in the forms asking if the couple knows, under penalty of perjury, if they are biologically infertile is a simple addition to the other questions; no more complicated than monitoring, as most now do, the couple’s biological sex. You can, with simplicity, make the selection more “perfect”. But watch the world quickly remember the benefits of recognizing marriages that don’t promote this “ideal” if a legislator ever promoted that :-).
iii) For truly complicated measures, the law here is already complicated far beyond the point of what would be needed. Much of what was written above regarding privacy applies. For example, we already make exceptions for certain couples and test to be sure they are infertile, or free of STDs before they can marry; there’s no significant added legal complexity to test for fertility. And if you don’t want to require extensive medical exams, you can weed out some couples with obvious reproductive inability, or, again, just ask (many people missing reproductive organs know it).
iiv) If the concern was actually simplicity over achieving the stated goals in the primary argument, one could make the law simpler by ignoring gender too. If simplicity is so important they'll undermine their goal in one instance, it's fair to ask why it's no longer important in this instance. They may have an explanation, but one should be given for the way they are balancing the two.

In all, I think these “oops” or “it’s too complicated” excuses are amongst the weakest in this ideal family argument. It’s difficult, when they are used, to not think they are use to only conceal and distract from the actual intention. By the last post I'll address the assumptions of the ideal family argument directly, but, still, I do think these claims are in need of address as they are prevalent.

Anyway, once those two angles are debated into the ground… and then covered with piles of thoroughly beaten dead horses, who are all beaten one more time, for good measure, with the titanium sheathed depleted-uranium hammer of a Pneumatic Dead Horse BeaterTM, it typically goes on to the argument that infertile heterosexual couples are actually included, not for a mistake or unwillingness to do "complicated" work for the ideal, but purposefully (adoption related arguments, fear of too much government intervention...).

Next post, though; this is getting too long (To avoid a tangent, I do suspect, the next post, Silus, is where you’re argument sits).