This is last in a 3 part series (and it’s long because I’m sick of this and don’t want to split it again :-)). I’ve basically followed, in the last two posts (here and here), how this argument typically progresses. But my main problems with it come with the often unspoken assumptions behind the ideal family argument.
1. Marriage as a Benefits Package: Often marriage law in the ideal argument is looked at and posed as some sort of government incentive, like it were some big brightly wrapped present. This is greatly wrong, and it promotes an unrealistic view of matrimony in the minds of youth. There are rights and responsibilities, and sometimes they are the same thing for different beholders.
Marriage law can be downright harsh and punitive (though not enough ;-)). Many people, people with children, do not get married, because what I see as rights when applied to the man and the family I already love, to them, appear to be burdens. Giving their partner rights to their income, taking on responsibility for their debts, and being legally tied to them actually discourages them from marriage. I’m sure we all know such couples. They are likely to not care much about the other fraction of the law either. If you don’t care enough to want to be financially responsible for and bound to another, hospital visitation and rights to make funeral arrangements may not be high on your lists either. Finally, with most families being two income families nowadays, what were there as more direct benefits for such folks are now largely irrelevant.
This gets to the heart of the causality in the ideal argument. You have to be in love with a person (or otherwise coerced or bribed into a loveless union) to see the marriage law of this culture as something desirable, otherwise it would be a horrible burden. In this chicken and egg scenario, I think it’s clear marriages came first, it’s a natural human state, and then legal marriage came in response to the way citizens live for their bonding (and divorce law came for the other part of some human nature, sadly). And, while it’s true the law has been used to reflect the coercive powers of society in, for example, restricting legal marriage by race or status, once the private marriages happened, the law has inevitably stepped up and reformed.
Simply, the “benefits” don’t cause people to marry; the private marriage makes the public marriage into a benefit, not the other way around. The law doesn’t cause people to make these lifelong connections and family--as I can clearly attest, people do that anyway :-).
2. Marriage Law as a Means to Keep Families Together: In the same vein as #1, the argument is made that the law is there to keep families together. This does work, in large part. But, again, if the familial love is not there, then the law can easily become a motivation to separate. If you’re the breadwinner, it’s true you’ll have to pay, and that may discourage you from cutting ties with a person you don’t want in your home. But if you’re not the breadwinner, divorce law, a part of marriage law, gives a motivation to split from a loveless marriage that can be great. Let the ex-wives of Donald Trump explain the economics, and, one would assume, their relief ;-).
3. The Mechanism: The assumption is made that these laws encourage the ideal family. As I wrote above, I think it’s mainly and far more clearly the families, composed of individuals who go and vote and participate in government, that encourage these laws to accommodate their marriages, but, assuming it’s true, what is the mechanism and is it really desirable? I can see a bit of sway to get a man to marry who he’d rather not because he could, say, get her on his insurance, but is that really the mechanism we want in play for marriage? To me this seems like an area where coercion is dangerous to families; their decisions should be, as much as possible, their decisions regarding family, not insurance premiums.
Is the hope that marriage law, as is, encourages gay men to marry women for these benefits? If so, I think or hope, even those gay men who have done so would think such legal gains are poor reasons to choose a particular partner. Faith and love? Fine, but money... Regardless, it’s the most conservative anti-gay-marriage states that have the highest percentage of gays having children. That’s either because the children are from heterosexual marriages entered into for coercion then ended, or gay couples in these states are somehow more compelled to adopt or use fertility treatments. Either way, the expressed interest isn’t being served by such mechanisms of “encouragement”. The evidence shows it’s a downright failure.
4. Evidence That brings me to another problem with this argument in general. I’ve gone over much evidence as to the fact that the state sees interest in 100% childless marriage, in marriages it insists be infertile and raise no children (here, here, and here). It’s there and no counter evidence is given as to show the claimed overriding state’s interest in this argument isn’t just an effective tool of debate. I’ve also shown data that demonstrate no noticeable effect of legal gay unions on the jurisdictions where they’ve been implemented (here and here). In fact, if a claim can be made from the numbers, it’d be that the health of heterosexual marriages improved after gays got such legal standing. I’ve also given many bits of evidence as to the benefits legal marriage for gays would give to society (here, here, and here), as well as the inarguable benefit it would have for the percentage of the population of adults and children in same-sex headed households (here). Such often gets overlooked or brushed off, though we are, without fail, told it’s our duty to produce it.
The burden of proof, though, is not decided by the greatest threat made by one side as to what would happen if the other wins. If I said, for example, we can’t give business licenses to left-handed people because, if we do, our economy will collapse. I can’t use the direness of that presumed threat to push the burden of argument away from myself and onto my southpaw friend. I’d have work to do as well.
To me, the burden of proof is in both camps. Legally, in fact, to discriminate on a person’s anatomy, particularly in a way that clearly harms them, one must demonstrate a “compelling interest” for the state, and thus this argument exists. Gays shouldn’t have to show the benefits, to themselves or others, though they easily can and do. They don’t need to even explain why they’d be so foolish as to be legally chained to another ;-); they just have to counter the other lawyer’s evidence of “compelling interest.”
5. A Myriad of Compelling Interests: I went over this here, but, simply and again, the State is interested in many aspects of law around marriage. It’s no accident infertile couples are allowed in. The state saves money, it arbitrates potentially costly disputes, it promoted the health benefits of fidelity, and it promotes self-reliance and bonds of family between two groups, and more, and even when no children can come of it. Merely the egalitarian act of giving equal rights regardless of anatomy has value to the state. Simply to call this ideal family the interest here is misleading.
6. The Heart of “Ideal”: It is argued the "ideal family" for “children” is their biological mother and father. This is obviously not true for many children. We are talking about individual people, the only things that feel and think, not abstractions, mothers, fathers, and children. “Children”, the group, has no feelings thoughts or rights and to assume it does will harm children, the individuals. The more ideal situation for individuals is that they are raised by the people who they have bonded to and have bonded to them, the people who have taken responsibility for them, the people who love them, the people who parent them. For many, the ideal situation is not their biological parents, who again are individuals, some of them pretty crummy.
Here, the ideal for our children is R and me. As with most all families, no one can take our place and do better for our children; neither of us is irrelevant or unimportant or able to be replaced. Even replacing one of us with the best parent in the world would be a detriment, as they do not know what we know; they are not psychologically bound to them and do not love them like we do. Even by the cold perspective of the state, we are the ideal in which the state has a stake here.
But, again, lets pretend the data shows a detriment to children of gay couples, on average. I’ve resisted pointing them out as I’d hate for another to be put under the same unfair scrutiny, but as long as my position against enforcing the so-called “ideal” is clear... For the divorce rate in the research I’ve seen, even if half right, I’m sure one could just as easily claim it’s not “ideal” for children to be raised in families where one parent is gay and the other isn’t. But I’m equally sure my friend L and his wife, for example, are the ideal parents for their children; there’s absolutely no one I’d rather the state encourage to be there. There are simply many “non-ideals.” I could show on average detriments for children in parents who: had prior marriages, have general anxiety disorder, are deaf, mixed race couples, have been raped, and I could go on and on. But each individual in these groups are most often, honestly, the ideal parents for their children, by far.
By the way you look at and the time at which you apply the word “ideal” (before or after conception or adoption), there are either zero ideal families or many. Only by using the first application of the word with gay couples, the definition of the Ideal FamilyTM no one meets, this argument has been effective. But, for the rest of the population, those far from the politics and religion surrounding gays, we know the second application is the most honest.
7. The Attack on Marriage and Family The argument eats at itself. The state is interested in the successful rearing of children. Marriage law increases that success. Therefore we deny marriage law to couples with children? The children of gays and lesbians, regardless of how anyone feels about their parents, benefit just as much by having their parents bound by law. The state benefits just as much, by not having to catch parents and children with welfare upon a tragedy.
In many ways the borders of marriage moved to include gay couples as much as gay couples changed to fit the new territory. Gays changed; society changed. Many gay-headed families do now better represent the intent of marriage law than the average married heterosexual. To ignore the commitment, dedication, love and obligation for the person’s anatomy, from my perspective, is the real insult and threat to the institution of marriage. To downplay what matters in the everyday workings of marriage for anatomy, and to make divorce simple, and the familial bonds legally invisible for couples who make these connections, couples with children every bit important as any other, is a threat to the spirit of marriage. Simply, society undermines its own idea of family by turning a blind eye to it’s best aspects where they are found.
In the end, all this reminds me of Kierkegaard’s refrain: “the crowd is untruth.” It is deceptive to look at the state as an individual, or talk about what’s ideal for “children” as what’s ideal for my children is not ideal for yours. Similarly, individuals make these legal decisions for other individuals, and can’t morally hide behind “the state”. When a citizen goes to the polls and votes to take from his neighbor’s family what his neighbor gives to him, he’s betrayed the social contract, the golden rule, and to blame it on “the state” strikes me as a copout. It’s this sort of sense of entitlement over neighbors, and ability to harm them behind such cover that, to my mind, threatens a state’s survival. It’s infectious.
But I’m no saint either :-). I do a lot of work with my local government to get equal voice, representation, and services for many other groups, but, sure, on this topic, I’m upfront concerned about my family, and the family of those I know. Nevertheless, I know things can’t stay the way they are. We have to find a solution. A couple decades ago, our families were so few and we were still reeling from the unhealthy effects of the national closet. We were in no position or state of health for such discrimination to matter very much. But now, more and more, gay couples are coupling up for life, building homes, having children right along with the rest. We’ve moved into the reasons for marriage and it will inevitably be addressed. But how? I don’t know.
(Personally, I’m hoping for Nessiage; you can keep your precious "marriage" :-))