This post is a continuation of the last (here), looking at the argument that marriage is for the production of children in “ideal families”. No worries, it will be over in a matter of days :-).
2. Purposeful inclusion of infertile couples in legal marriage: It’s argued that the infertile straight couples are put into the marriageable category, for certain reasons, that supposedly do not apply to gay couples. The reasons:
a) Infertile heterosexual couples may still adopt. Here, the first “ideal” of children being raised by their biological parents, is actually put aside for a second “ideal”, that children be raised by married opposite sex couples, not their biological parents (though it can’t really be called an “ideal” anymore, right? But opposition will still often use the word here).
i) This exception gets in the way of the “ideal” in the same way it’s argued gay marriage would. Purposeful recognition of infertile marriages makes favoring the ideal of the original argument similarly “impossible” by taking biological parents out of the equation. But most people do actually understand that the “ideal” for many children is far from their biological parents, and for the state to blindly follow biology would harm many people and its interests. Similarly, many children’s ideal parents are not their biological parents or parents with different sexual anatomy, but their parents--the people who love, take responsibility for, live with, and sacrifice for them--and no one else. If the state would be amiss for promoting its ideal in one instance as it ignores genetics, why is it not amiss in the other instance by ignoring anatomy for the children who’s ideal parents are neither their biological parents nor some set of strangers who just happen to have different sexual anatomy?
ii) In adoption the point is to find the best solution available for the child, which does include avoiding protracted periods in temporary care. Even if one concedes that gay couples are, on average, inherently worse situations for children (a finding that’s not in any reputable data, though touted as gospel truth), there will still always be gay couples who can do better than the average adoption-eligible straight couple. I can show other groups involving traits that show a clear, on average, deficiency in the children they raise in the data (more deleterious than what’s even claimed by anti-gay rights folks to be found in our children), but no one in their right mind would bar everyone sharing that trait from marriage or adoption when judging individuals. They can see enough to know that would hurt the children even more, in such instances, away from the passions of gay politics. No, adoptions must be done on a case-by-case basis, and by applying averages to individuals based on anatomy is prejudice that threatens finding the best option for the child. For this reason, if the ideal is truly hoped to be promoted for these individual children, it will often include gay couples.
iii) Again, if this honestly is the reason, there are very easy ways to rule out infertile couples who also cannot adopt, and who the state would certainly not want to promote for adoption. Can any evidence be presented to show this is the state’s interest in infertile marriages then? Most of the law seems to support the opposite. For instance, even a couple with a record of child sexual abuse is allowed to marry with no attempts to stop them. Incarcerated people even have this right. All that is public record that could be used, but it doesn’t even need to be anything scandalous. Again, age is checked as part of the process already, and no adoption agency will be handing a child over to a couple celebrating their 60th anniversary. Also, again, medical tests are already done. What about an infertile couple including a person dying of cancer in a matter of months? Talk about “ideal” for children and the state taking a financial hit, and yet the state shows no interest in its marriage laws.
b) Fear of authoritarianism. This is a variation I’ve not seen much (probably because most the folks I argue with have no problems with, and in fact long for totalitarianism :-)). But Silus, is using it here. To paraphrase: The state hopes to avoid being authoritarian, as authoritarian states tend to fail, but it aims to promote its interests. The state thus chooses tools with the greatest influence and smallest footprint (the difference between influence and footprint?). In child rearing, “heterosexual marriage only” is one such tool to get that by which the state benefits. Infertile couples are thus included to keep the government from collapse (right?).
i) The state has many interests in marriage. While good child rearing may be arguably the largest concern (one that still argues for marriage rights for gays in about a third of the gay-headed homes in Utah, and growing quickly), there are many others and I think the evidence shows the state knows this. We recognize marriages knowing they are both infertile (sometimes insisting on it) and that we’d not want the couple to raise any children either, because the classification benefits everyone. I’ve listed a number of the benefits (here, here, and here), but, plainly, the state saves resources and social conflict when it treats couples as couples; it only pays in a very limited number of marriages that do apply both to straight and gay couples (e.g. a 80-year-old who marries on his death bed to a wealthy 30-year-old limits the tax dollars the state would normally take).
ii) What makes a footprint too big in meeting the state’s goal, especially compared to the footprints already there? If this argument is to be used I think an explanation as to why it’s okay to step on my family, but not on others who don’t meet the “ideal”, particularly those marriages that do far less in producing and raising healthy children than gay couples.
iii) I think it’s also fair to ask, if this is the case, what reason is there to believe government stability would be threatened by, say, a constitutional amendment to keep convicted felons from marriage? Or even keeping old women from marriage?
iv) Isn’t much of this “small footprint” addressable by the “simplicity” argument in the last post? That could be what is meant by “footprint”.
v) Alternatively “footprint” could be the number of lives altered. Even here the number of infertile couples, the last time I check the stats, was at about the same percentage of gays in the population. I can’t find the numbers but I’d bet the percentages of marriages occurring with a couple in their 70’s is quite small too, not to mention marriages with felons (or between cousins :-)). And the numbers affected for the sexual anatomy restriction is only going to grow, and that includes a host of non-gay grandparents, cousins, aunts, and so on, in the group negatively affected by the status quo too.
vi) Really, by most definitions, the current state of law here is authoritative and dehumanizing, and unstable. This argument can be more of an argument to have an even smaller footprint and change the law rather than keep it. For one example, can you imagine making it constitutionally legal to boot families from their homes because of any other inborn trait? Even if, as things stand now in Utah (though not elsewhere), no one actively looks to enforce that law, it’s still there and can you imagine what it’s like to be a parent under such threat? It just takes one grumpy neighbor to get the law to make you move because one of you is not the right sex, or at least traumatize your family through a legal battle for your home. That’s one of my larger fears, aside from the other concerns I’ve listed, here, and the minor insults, like the frustrating necessity to actually lie and mark “single” on my taxes, after 14 years together, over a decade of matrimony, and two children.
But most gay couples we know have it much worse. Some families are brought to using welfare and food stamps because their provider (or main provider) has been killed (sometimes even in military service) and their sex allows them and their children no claim to what a different sexed person would inarguably deserve. There are families here who have half their children covered on their health insurance and the others uncoverable; they take state support, as they are technically the children of an unwed, jobless, stay-at-home parent. Can anyone say that’s not dehumanizing treatment by the state? It’s not authoritarian to keep these rights and responsibilities from families because the M or F on a birth document isn’t right? Those same families, if something tragic happens, can relatively easily have children removed from parent and siblings. When the claim is that such is no big deal, or that this is just about some feel good “me too” PCness, or the retort is a dressed up “stop hitting yourself”, I don’t know what to say. These are real people, finding stable relationships and building families, as was inevitable the first day a gay kid came out and his parents lovingly sighed an “Okay.” They are following one of the most common, intrinsic, and important pursuits of pure and selfless human happiness they’ll ever have. To legally and constitutionally hobble them and their children for someone’s sex should be troubling; it should feel authoritarian. At least it shouldn’t be trivialize.
Simply, if we want people to care about society, give their family a stake in it and make the forceful extraction of funds from them fair. The whole “equal rights is no big deal, when it has to do with a person’s sex” argument should be distasteful. It should seem socially dangerous. In a decade or so, when most people know one of our families, have gone to school with our children, have been our neighbors, and so on, I don’t think things will look so forgivable, and the proposed compelling interest here won’t look so compelling, and the other compelling interests of marriage will be remembered. As the troubles that accumulate for not having such marriages recognized get noticed by more people in their personal lives and in the actual real-world price tag for the state, I’m betting this restriction will start to look more intolerably authoritarian to the average person. But I could be wrong ;-).
c) Tying up fertile humans. This is a relatively minor angle, but some may go on to say infertile heterosexual couples are included in order to keep from spreading STDs or the fertile half from impregnating an unmarried person. Quickly: i) The same applies to gay couples (one can be bi you know ;-), and STDs are spread by both sorts of sex). ii) We can still test both for fertility. iii) This goes against part of the original goal, again, by encouraging fertile people to keep from producing children in marriage and only promoting the option for them of divorce or producing children not to be raised by biological parents, if they want children.
d) Economic ideal: Marriage law, as is, is argued to have been created to deal with straight couples only; it’s ideally suited for them but not gay couples who’d need a whole other set of economic rules. Differing economics is the reason infertile heterosexuals are included in the group, but gays are not.
i) To me this argument only shows what the person doesn’t know about the lives of gay people. It’s kind of funny; of all my straight friends with children… lets see… under a third have stay-at-home parents while over two thirds of our gay friends with children do. The straight couples have two incomes and the kids in daycare in a matter of months after birth, but the gay couples have stay-at-home parents and single incomes. Nationally over 60% of children are in day care, indicating most families now do not meet the ecconomic aims of marriage. In this way many gay couples actually meet the traditional reasons behind the economics of marriage law (e.g. a claim to a breadwinner’s income, health benefits, social security, and so on) far better than a significant number of straight couples nowadays who have two income families and are less economically interdependent.
That all said, I think a lot of this is argument about fertile and infertile folks is for not. I think infertile and life-long childless couples are included because their inclusion meets many of the goals of marriage and the state, if not one of the main goals. I think we benefit by their inclusion, and that it’d be immoral to exclude them, even though I don’t think the state would fail if they were excluded. I think there are problems with the premises of the ideal family argument, not only in the explanation of the observations of what the law currently is and what most opponents of gay marriage actually promote outside of this issue. I’ll get to that in my next, and, one might hope, last :-) post on this topic.