If not for procreation, then why marriage at all?

Intentions to cut back on blogging notwithstanding, I have some sincere questions for proponents of same-sex marriage.

The New York Times exults that the Plaintiff gay couple in this week’s same-sex marriage Federal case had a secret ally: “the Obama administration’s obligatory but half-hearted defense of [DOMA], which since last year no longer supports Congress’s stated reasons [for passing the law].”

I’ll forego extended reflection on how troubling I find it that one lousy legal case should change the national legal landscape when one of the parties “throws the game.” I’ll forego the expletives earned by the Administration for not getting top talent from outside to defend a law toward which insiders were, almost by definition, hostile. I’ll also forego predicting what the 2nd Circuit (I think that one covers Massachusetts) or the Supreme Court will make of this.

Instead, a few questions.

The stated reasons for DOMA, according to the Judge, were “the encouragement of “responsible procreation” and traditional notions of marriage and morality.”

If those aren’t good reasons, what are good reasons why the Federal government should extend any benefits to pairs who are in relationships their states choose to call “marriage”? And why should “marriage” have anything to do with sex if it’s not potentially procreative sex? Why, for instance, shouldn’t good, platonic friends be able to take their rightful place at the government trough? Spinster sisters living together? Surely they’re somewhat dependent on each other. How about Norwegian bachelor farmers around Lake Woebegon? They probably are having a tough time of it economically. Maybe they should be able to claim “marriage.” And, yes, why not trios, quartets, quintets, sextets, septet, octets, or the whole Jim Jones compound?

Why should the state even bother issuing marriage licenses? What skin does the state have in this game?

These really are not meant as rhetorical questions, or as reductios ad absurdum. I’m trying to figure out why — other than mawkish sentimentality about romantic feelings and a desire to poke a finger in the eye of traditionalists — the case for same-sex marriage has become self evident to people who buy their ink by the barrel.

It is no answer to my questions to try delegitimizing them by labeling me a “homophobe.” I’m no more phobic about GLBTQ-and-whatever-else-is-added-these-days than I am about spinster sisters and Norwegian bachelor farmers. I think Platonic friendships are splendid things. I’m willing to be perfectly tolerant of non-Platonic same-sex relationships between adults (legally, not religiously; though I have no personal religious authority, I defer to those of my tradition who do).

Should we extend “marriage” benefits to one of the two (if the rationale really is limited to pairs, not congeries) who stays home, with no career in the national economy, as a sheer matter of choice, not to raise children? (I know we do that with childless traditional couples now, so don’t think you’ll stun me by so noting.) Or should we cease extending any benefits of what currently is called “marriage” in most states, extending benefits instead only to people who are raising minor children?

In sum:

  1. If marriage in the eyes of the state has nothing to do with procreation or child-rearing, then what does it have to do with?
  2. Is that “something that it does have to do with” of sufficient public importance that we should, for instance, extend the current panoply of government benefits to it?
  3. If that something is of high public importance, would it nevertheless behoove us to get government out of the “marriage” business and put it in the “civil union” business instead — just to avoid rhetorical confusion? (My Church has tied “marriage” to procreation long before there was a USA, or any modern nation-state, so it’s a minefield of confusion to say we cannot possibly recognize same-sex “marriage” if the government calls its favored pairings “marriage” as well.)
  4. If that something is not of high public importance, then why shouldn’t we save tons of money by withdrawing benefits, ceasing marriage licensing, abolishing divorce laws, and generally getting government out of an area where it has little or no interest (except in a tradition that the judge this week despised)?

Comments will be moderated. I’ll let through any comment that evidences thoughtfulness, and I’ll bar both “Amen, brother!” and “How dare you, you homophobic bastard!” comments.

About readerjohn

I am a retired lawyer and an Orthodox Christian, living in a collapsing civilization, the modern West. There are things I'll miss when it's gone. There are others I won't. That it is collapsing is partly due to calculated subversion, summarized by the moniker "deathworks." This blog is now dedicated to exposing and warring against those deathwork - without ceasing to spread a little light.
This entry was posted in Economia, Family, Legalia, Religious freedom, Sexualia. Bookmark the permalink.

11 Responses to If not for procreation, then why marriage at all?

  1. Unfortunately, marriage seems to be about everything else than children. Marriage affords an opportunity to make a commitment to another person, a chance to say “We’re in this life together.” Generally, civil marriage is required to establish a right to kinship decisions (something the spinster sisters have by virtue of being sisters). The amount of paperwork I need to fill out to designate someone other than a blood relative as a person who can make decisions in my life is mind-boggling. Every situation has a different form: the medical power of attorney related to medical emergencies, the negotiated lease terms for sharing property with another, the ability to make a choice about health insurance, etc (it’s rather early and I’m in no condition mentally to remember the list right now). So many things come automatic with “marriage” and “family” that it’s hard to replicate the privileges with any other construction.

    I honestly think that civil marriage is more about managing assets than it is about rearing children. After all, we don’t require that a man and woman prove their reproductive compatibility before they get married. We’re more interested in making it possible for people to easily change their last name.

    I know several heterosexual couples who have been married for years, but have no intention on ever having children. Whether that’s religious appropriate is one question, but whether their choice should be illegal on the grounds that they have no intention to engage in procreative sex strikes me as a strong misuse of governmental authority. Additionally, there are several couples who want to be able to have children, but for whatever reason, have not successfully conceived. Again, a procreative mandate does not seem appropriate.

  2. Doug says:

    I’m no expert, but I don’t think the history of marriage lends itself to the notion that marriage is primarily about encouraging reproduction or child-rearing. It has historically been about property. Presumably an orderly transfer of assets helps keep the peace.

    I think there has also been an element of marking territory, declaring which potential mates are out of bounds; competing for mates is a source of strife in the tribe.

    However, I don’t know how that plays into your analysis, necessarily.

  3. readerjohn says:

    I wrote a longer response – much longer – and then managed through the magic of cut-and-paste to make the formatting unintelligible and the text difficult to extract from the hypertext. So here’s a short response.
    It seems to me that Practicing Human and Doug Masson both have responded to the blog’s title instead of to the actual questions in the blog. That’s understandable, and I share some blame for sending mixed signals.
    My title, had I been willing to make it ponderous, would have fit the body of the posting better had it been “If not for procreation, then why should the state be interested at all in the erotic pairings of consenting adults?”
    That said, in reverse order:
    Doug identifies two interests that might be of interest to a state – property succession and sexual boundary-marking.
    But it’s really hard to take the latter seriously since it now seems to be constitutional dogma (Lawrence v. Texas) that there are no sexual boundaries – at least none based on mere morality.
    Moreover, any social need for sexual boundaries antedates the modern nation state (with it’s marriage licenses), and even the remotest antecedents of the common law (where a couple could marry without license – “common law marriage” not being the same as unmarried cohabitation but being real marriage indeed). And sexual boundaries, really now, are more efficaciously marked on the left hand in our culture than with a marriage license. You can buy a wedding ring without a license if you want to mark yourself out of bounds. But neither license nor wedding ring is very efficacious these days.
    As for the need to create orderly succession to property, that seems to be utterly unrelated to whether two people are erotically involved with each other, doesn’t it?
    As for Practicing Human’s “mind-boggling” paperwork pile (assuming, for sake of discussion, that marriage or civil unions really would tidy up all the situations she describes – which I doubt), it’s hard for me to see why offering a different set, or multiple different sets, of prepackaged bundles of proxy and inheritance decisions is much of a state interest. States have already offered a set. Every Hoosier who wants something other than the Indiana Code Article 16-36 list of medical decision-makers, or the Article 29-1 intestate succession scheme, must do some paperwork. Given the myriad vagaries of personal preferences, the possibilities are endless, and thus defy codification.
    And it seems perverse to call all those packages “marriage” when that term carries with it such long and rich connotations that, for instance, the Supreme Court could allude to “the sacred precincts of the marital bedroom” (wink! wink!). Finally, in case the point isn’t already clear, the needs for proxies and property succession exist for everyone, erotically involved or not, and considering the many people who are not married and don’t wish to marry (traditionally or SSM), the possibility of a domestic partner registry seems better tailored to the needs Practicing Human identifies than does the institution of marriage, which carries with it a whole lot of benefits and burdens that aren’t remotely tailored to the state’s interest or the legitimate individual interests involved.
    Or so it seems to me – as I await identification of the stronger state interests than Doug or Practicing Human have offered.

  4. Doug says:

    State sanctioned marriage may well be vestigial. But, I suspect a good deal in our society probably is. The problem is that it’s difficult to tell what customs are clutter from bygone eras and which ones are still “load-bearing” customs.

  5. readerjohn says:

    The difficulty of distinguishing clutter from “load-bearing customs” is the reason for “Never take down a fence unless you know why it was put up” or, in scriptural terms that may have been meant literally to the original readers, “don’t move the ancient boundary-stone.”
    Such wisdom is why I first unconsciously, later self-awarely, have shifted the burden of proof to SSM proponents, away from the defenders of traditional marriage. I wish Judges would do likewise. But once the cases get cast (dubiously) as equality cases, the burden tends to be on those who would deny benefits X, Y & Z to same-sex couples.

  6. I do not think the State is interested in protecting “marriage” as much as the State is interested in protecting the status quo. It appears that the historical need to go and receive a marriage license was to block interracial marriages. Additionally, a racially-mixed couple living together without a marriage license or a domestic employment (such as a housekeeper or nanny) agreement could be subject to persecution. Domestic employment agreements have fallen out of fashion, but with the rise of human trafficking within our own borders, I think I would support some kind of registry.

    I think the myriad of benefits that have nothing to do with one’s relationship actually came as a way to help people consent to the need to register their marriages with a license to regulate interracial marriages. Everyone (except those who desired interracial marriages) was getting a pretty good deal from the government, so why not sign up for the assorted benefits package?

    One fully constitutional task of the government is to conduct the census every 10 years to figure out who lives where. It stands to reason that knowing how many heterosexual marriages were performed in a given area helps establish projections for the need for early childhood services and other educational services. However, I do not think current political interests consider the family as the prime location of educating children, particularly in light of the No Child Left Behind concept and focus on teacher accountability.

  7. readerjohn says:

    @Practicing Human:

    I have a general bias, for reasons somewhat “beyond the scope” of this discussion, in favor of getting government out of things they don’t need to be in (or that they no longer need to be in because the rationale for involvement become negligible). So although I find it suspiciously anachronistic-sounding the suggestion that barring interracial marriage was the reason for licensing marriage (I suspect that marriages were licensed when societies were still too homogenous for interracial marriage to be an issue), I don’t need to investigate the suggestion to be sympathetic to pulling the state back from this area.

    And if licensure of marriage was part of the overarching war on the Church waged by nation-states (which intensified during the Reformation when incipient nation-states in Northern Europe enthusiastically boosted the Protestants to weaken Rome), that seems to suggest that the Church was “soft on interracial marriage,” doesn’t it? Bully for them!

    If “the myriad of benefits that have nothing to do with one’s relationship actually came as a way to help people consent to the need to register their marriages with a license to regulate interracial marriages,” then I’m seeing slender justification for continued state involvement and my anti-state bias inclines me toward saying “get the state out of ‘marriage’ and leave that to the Church(es) and common law marriage declarations for the secular.” Would you agree?

    But that still begs the questions I was first driving at: if the state is going to continue to “incentivize” domestic partnerships/civil unions (hetero, homo, poly or whatever) that possess attributes the state wants to foster, what are those attributes? Do same-sex couples possess them equally with heterosex couples? I’m out of the closet now as an anti-statist (or at least a small-government small-statist), so be warned: I’m sympathetic to getting the state out of these matters – along with myriad others.

    But I am inclined to think that as long as the state incentivizes or gives tax deductions for any desirable behavior, child-rearing should be among those behaviors.

    Now this all makes me want to revisit my last exchange with Doug. Are you arguing, Doug, for erring in favor of leaving in place customs that may be “load-bearing” instead of vestigal? Is the “hetero” feature of traditional marriage one of the customs you think may be load-bearing? If we’re uncertain whether state involvement in marriage is load-bearing, because we’re fuzzy about what purposes marriage serves, then isn’t it folly to fiddle with the custom by adding a “homo” option (that may destroy the bearing capacity – how can you say it won’t if you don’t know what’s being born or how marriage bears it)?

    UPDATE: Before I rose from my chair to greet the rest of the day, it occurred to me that a disclaimer may be is needed. I am not (yet) advocating the steps my comments flirt with: renaming the state’s institution “domestic partnership” or “civil union” or something; or eliminating all “marriage” or “domestic partnership” benefits except those tied to childrearing.

    I’m not (yet) advocating them because I have no illusion that my whimsies, if enacted, would have no unintended consequences. I’m very serious about teasing out unintended consequences before taking big, sweeping action.

  8. The only places you see the government providing a direct endorsement for raising of children is a per-child tax credit, which incidentally is defined as a “dependent” that includes the sense of a dependent adult. So this begs the question: can any competent adult find themselves in a situation that warrants declaring responsibility for dependents? Yes, independent of gender. Without marriage for same-sex partners, it becomes impossibly difficult for the non-custodial partner to engage in dependent care, regardless of who is involved. I think it’s a good idea to have a range of systems that keep children from becoming wards of the state, but I do not think that the state is predominantly interested in the gender of persons caring for children. Fathers have fought uphill battles for years to gain custodial rights of their children when separating from the mothers.

    But doesn’t custody issues relate more to the phenomena of divorce?

    Additionally, I had my facts backwards a bit. Interracial marriages were illegal UNLESS one could secure a marriage license. In 1923, we passed something of a Uniform Marriage and Marriage License Act that required that everyone get a marriage license. Not being a lawyer myself, I’m struggling to find the specifics of this legislation and track any changes over time.

    I think there is also something about the benefits that desire to ensure household stability. Generally people sticking together to do life together share the loads with one another. It’s possible that a more stable household reduces the demand for some local government services (such as mental health services). Again, I don’t think it matters that the situation is uniquely hetero and/or sexual.

    Moreover, there seems to be a “nanny state” effect about the State’s willingness to police the private, consensual lives of homosexual adults. Why should it be of import to the State if two adults happen to engage in sexual activity? I ask this because there is nothing that seems to regulate the private, consensual lives of heterosexual adults. I think such legislation is a misdirection of police responsibility.

    The State places children in all sorts of situations, particularly when we look at the foster care system. My guess is that the State simply does their best to try to keep a roof over a child’s head. Additionally, I think it is in the State’s best interest to work towards ensuring peaceful dissolution of particularly challenging domestic situations [such as those stemming from domestic violence].

    What I see the states interested in protecting are domestic arrangements rather than marriage itself.

  9. readerjohn says:

    @Practicing Human

    I don’t follow two things in your latest comment, and that threatens to make any response a sort of monologue – whence, in part, my long delay responding.

    First, I don’t understand “without marriage for same-sex partners, it becomes impossibly difficult for the non-custodial partner to engage in dependent care, regardless of who is involved.” I’m very familiar with the Indiana Health Care Consent Act, Indiana Code Article 16-36. It gives no status to, say, a daughter-in-law who desired to care for a dependent parent-in-law. Yet my wife cares for my mother generously and unimpeded. And while she’s been in nursing home, I’ve several times encountered a gay couple, one of whom cares lavishly for his partner’s mother, again unimpeded. That’s not meant as conclusive refutation but to illustrate why “I don’t follow you here.”

    Second, the paragraph about nanny state and policing private consensual lives of homosexual adults seems unconnected to anything anyone has advocated in this thread (or that I’ve advocated anywhere in my adult life). I can imagine an idiosyncratic meaning that might be what you’re driving at, but I’ll not speculate further about that.

    Your account of the “Uniform Marriage and Marriage License Act” I immediately recognized as skewed, but I’m grateful for the reference, the Googling of which led me to some interesting stuff – including “Privatizemarriage.org” which may have been your source.

    Uniform laws are not passed by Congress (as Privatizemarriage.org erroneously states) nor even promulgated by it. They are promulgated by a private “Commission on Uniform State Laws” – and by promulgated, I mean the Commission says “we think it would be good if laws on this subject were uniform, and we suggest this as what the states should adopt. The Uniform Laws then are adopted state-by-state – or rejected by some states – not all at once and rarely in one year. And many states tweak them, screwing up the “uniformity.”

    According to Wikipedia, Marriage licenses go back to medieval times, when interracial marriage wasn’t much of an issue. I have to give Wikipedia the plausibility edge over Privatizemarriage.org on this point of historic interest. I’m not sure how that plays into your thinking. I suspect that “Medieval times” is Wikipedian for “coinciding with the rise of the modern nation-state.”

    I found the Privatizemarriage.org site interesting, though, despite its shortcomings, and expect to go back to dig deeper. I’ll only say for now that privatizing marriage seems to me like a solution only if I’m comically misunderstanding the problem.

    The problem, as I perhaps mistakenly have viewed it, is that government benefits aren’t lawfully available to anyone who privately contracts “marriage” without a license. That seems “the problem” to me because any pair – heck, any threesome or foursome – can go out right now, despite marriage laws, and declare themselves “married.” If they can find a willing clergyperson, they can have a religious “marriage.”

    Nobody can arrest or legally harass them for their declaration. After Lawrence v. Texas, nobody can bother them if they “hump like bunnies” (which I support as public policy but oppose as constitutional law). And as palimony cases have shown, the courts will even be apt to enforce their agreement if they split up.

    But they’d better not go apply for Social Security survivor benefits (for instance) on that basis because their private or religious self-declaration has no legal status when it comes to government benefits. (And as a couple of my own acquaintance illustrates, they’d better not ask a court for a “divorce” if the relationship goes sour.)

    Have I misunderstood the problem?

    If the problem has not been benefits, but permission to use the term “marriage” in a non-legal sense, then the proponents of alternate forms of marriage are the ones who’ve been misunderstanding the issue. As I say, they’re free to contract and to call their contract “marriage” among themselves and their friends. (Yadda, yadda: no need to repeat.)

    I said I risked monologue, and perhaps I’ve just proven it. I’ll leave it there for now.

  10. I haven’t done a lot of research regarding the topic; I’m just trying to represent what friends have told me time and time again.

    There are some things that only come with federal recognition. I presently have a Canadian friend and a cousin who both married people from the United States and Mexico, respectively. My cousin could sponsor her husband to emigrate from Mexico. My Canadian friend planned to live in Washington, DC with his partner but the HB1 visa (a work visa sponsored by your employer) quota for DC was filled by the time he located an interview of somewhere willing to think about sponsoring the process. Now, his partner needs to quit his job in DC, they will emigrate to Canda where my friend can sponsor his partner, lest they have a dual-country marriage. [I know that it’s a bit odd that I’m talking about immigration policy, but it’s a conversation I’ve been privy to multiple times. While it’s not a cakewalk for anyone, it’s a lot easier to try to work with a spousal visa.]

    I also know that I have homosexual friends who need have a standing emergency legal consult to be able to enforce legal agreements when trying to attend to their loved ones in the hospital. Often times, hospital staff exercise quite a bit of judgment. The only cases where I have seen it difficult for heterosexual partners to care for dependents have occurred in the cases where a dependent adult has restricted the medical power of attorney.

    Apparently, marriage confers a whole host of benefits that will never be approximated by something else like a civil union. I say “apparently” because I too struggle to know what those benefits are, outside of a couple of extreme cases. Focusing on the benefits of marriage seems, in my approximation, to be a far cry from the image of marriage as martyrdom.

    I would scarcely call myself a “proponent of same-sex marriage” because the more the issue comes up, the less I can justify marriage as an arrangement properly handled by the government. I would like to see something more descriptive about what the government is trying to (protect, support, regulate?) when it comes to relationships between adults.

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