SAME-SEX UNIONS

[For about the past ten years, there has been an extensive campaign in Europe, North America and some other countries to grant formal legal recognition to same-sex unions, relationships between people of the same sex. This MercatorNet backgrounder discusses the moral and practical difficulties of allowing gay couples to marry. The author, Dwight Duncan, is a professor of constitutional law at Southern New England School of Law in North Dartmouth, Massachusetts. Over the years, Mr Duncan has participated in litigation as attorney for amici curiae in opposition to so-called same-sex marriage in Hawaii, Vermont, Massachusetts and New Jersey. He has written extensively on the topic and given expert testimony to the Canadian government. ]

#182 Hogar Categoria-Matrimonio y Familia

by Dwight Duncan, a professor of constitutional law at Southern New England School of Law
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Background

For about the past ten years, there has been an extensive campaign in Europe, North America and some other countries to grant formal legal recognition to same-sex unions, relationships between people of the same sex. Whether this legal recognition takes the form of “marriage” or a marriage-like status variously called “civil union” or “domestic partnership,” the intent of this campaign, waged largely in the media and in courts and legislatures around the world, is to officially sanction and endorse homosexual relationships and put them on the same level as the spousal relationship between husband and wife. In 2001, the Netherlands became the first country in the world to recognize same-sex “marriage,” and Belgium, Canada and the state of Massachusetts in the United States have since followed suit. This social experiment runs counter to the universal consensus of history, across wide divides of geography, religion and culture, as to the nature and meaning of marriage. Historically, marriage has always been understood to be an enduring relationship between a man and a woman and to have some intrinsic relationship to the possibility of having children and thus providing them with a both a mother and a father. Even traditions that have recognized polygamous unions have always understood them to involve both sexes and not just one.

Why Western culture has privileged marriage

In the Judeo-Christian tradition, of course, marriage has been so understood from “the beginning,” in the Book of Genesis, where it says that “male and female He created them.” (Gen 1:27) “Hence a man leaves his father and mother and clings to his wife, so that they become one flesh.” (Gen 2:24). In the Gospels Jesus Christ expressly adopts these passages from Genesis in explaining his teaching against divorce (Matt 19:4-7). The Christian tradition, like all the major world religions, has always recognized marriage as an enduring relationship between a man and a woman. This understanding of marriage makes sense if we consider why it is that society is vitally interested in the marital relationship: because it is the best setting for the begetting and raising of children, who are the future of society. This explains why society and the state require a marriage license for people to get married, and regulates the terms and conditions of the dissolution of marriage. Unique among types of friendship, marriage implicates the public interest, principally because the marriage relationship, of its nature, has the potential for bringing new citizens into the world. After all, one does not generally need a “friendship license” or need to get the government’s approval to break up a friendship. But because marriage is the socially approved setting for sexual intercourse, which is procreative by nature (even if not actually procreative in a particular instance), the government is vitally interested in the welfare of the children who may result, and who are best raised by both their mother and their father.

Why homosexual relationships disadvantage children

Homosexual relationships, which are between persons of the same-sex, can never result in children. Any children raised by partners of the same sex are necessarily the son or daughter of some third-party and not the offspring of the same-sex union. Furthermore, same-sex parenting by design deprives children of either a mother or a father. There is plenty of sociological evidence indicating that children do best when raised by both a mother and a father. Two mothers or two fathers are just not the same. For instance, as I recently noted in an amicus brief filed in Washington state in the same-sex marriage case, “families with both a mother and a father achieve the best outcomes in raising children along virtually all relevant measures when compared with alternative family forms. Under almost every conceivable standard—educational achievement, physical and mental health, drug and alcohol abuse, emotional and behavior problems, teenage pregnancy, depression, suicide, and criminal activity—children raised in homes with their biological mother and father who are married do better than various other family arrangements that lack the presence of either a mother, a father, or one of the biological parents.”

Is contemporary marriage “shot to hell” anyway?

Of course, this attempt to radically reconfigure the definition of marriage comes against the background of various attacks on marriage as traditionally understood. The widespread practice of divorce, for example, has weakened our understanding of marital fidelity, as has the practice of extramarital sex. Furthermore, the widespread availability of contraception and abortion have tended to lessen the link between sex, even within marriage, and procreation. Meanwhile, many people are having children and raising children as single parents. All of these developments, most of which have nothing to do with homosexuality, are undermining our shared rich, deep understanding of marriage as the permanent union of a man and a woman intrinsically ordered to the procreation and education of children. Instead, a stripped-down cultural understanding of marriage as simply a type of “friendship recognized by the police” has allowed homosexuals to argue that their relationships too should qualify. No matter how transient or how disconnected to potential offspring, they argue, their relationships are “loving,” and deserve society’s good housekeeping seal of approval. This is what I call the “marriage is shot to hell anyway” argument, and it is one of the strongest arguments in favor of recognizing homosexual relationships as some type of “marriage.” However, the endangered status of marriage in the industrialized West is an argument for being more careful, not less, before changing an institution of such central importance which is vital for the future of society. To recognize same-sex unions as marriage would definitively sever the link between marriage, procreation and father-mother parenting.Thus, the burden of proof in making such a radical change should be on the advocates of change, not the advocates of tradition. As a practical matter, for example, no one really knows what the long-term effect of deliberately raising children without a father or a mother will be, since this experiment is of very recent vintage.

Who should decide: judges or voters?

Furthermore, the strategy in many countries has involved using open-ended constitutional guarantees of liberty and equality and court cases to force the recognition of same-sex “marriage” on a reluctant public. That was certainly the case in Canada and in Massachusetts. Here the question is who should decide this question of the nature of marriage in a democratic society: judges who are more or less insulated from public opinion, or legislators who are democratically elected and answerable to the people. This past election, in the eleven states in the United States where this question was on the ballot, the traditional understanding of marriage prevailed in all eleven by wide margins. The Massachusetts Supreme Judicial Court, on the other hand, imposed the recognition of same-sex marriage on the Commonwealth by a 4-3 vote of its judges. No wonder that there is now talk of amending state and federal constitutions in the United States to prevent the judicial imposition of same-sex marriage.

Is denying homosexuals the right to marry discriminatory?

The claim that same-sex “marriage” is some kind of civil right also assumes the matter at issue. Many minority groups would dispute the claim that behavior based on sexual orientation is in any way comparable to innate characteristics like race or sex. Many African-Americans, for instance, have been appalled by efforts to make gay marriage the new civil-rights agenda comparable to racial integration. There are many reasons why same-sex unions are not properly considered to be required by either liberty or equality. They are not required by constitutional liberty because this right has never been recognized at common law. At common law, one had the freedom to marry if one was of legal age, one’s intended spouse was of legal age and of the opposite sex, and there were no impediments like an already-existing marriage or near-degree of kinship. Furthermore, equality between the sexes did not require the legal recognition of same-sex unions because the requirement of male and female affected both sexes equally. Nor was the refusal to recognize same-sex unions a type of invidious discrimination on the basis of sexual orientation because the discrimination was in no way intentional. After all, no one asks what your sexual orientation is when you seek to obtain a marriage license. It’s just that marriage is only marriage if it is between the sexes.

An uncertain future for marriage

Indeed, constitutional arguments for the creation of a right to same-sex marriage based on either liberty or equality have this problem about them. They can in no way be limited to the legal recognition of same-sex couples. If what makes a marriage is simply “love” pure and simple, there is no reason why three or more people cannot be married. And so the door is open to the forced legal recognition of polygamous relationships. Even bans on the marriage of close relatives would become constitutionally suspect, if marriage were so understood. Thus the door would be open—not now, maybe, and not by this set of plaintiffs, perhaps—but eventually and in principle, to incestuous or underage unions. Some people have argued that homosexual couples should be given all the legal rights and responsibilities of marriage, but under another name, like “civil union.” That is what the state of Vermont tried to do, though it could only extend identical rights and responsibilities under its own state law, and not under federal U.S. law. (This is because the United States government and 40 or so of the 50 states have passed Defense of Marriage Acts which specify that marriage is only between a man and a woman.) What’s wrong with the “marriage-in-all-but-name” approach to same-sex unions? The problem with this is quite simply that a same-sex partnership is not marriage and so should not be treated like marriage: Male-female couples are different from male-male couples, which are in turn different from female-female couples. (Perhaps “pairs” would be a better term than “couples” for same-sex unions, since there is no sexual difference involved.) And if these are different, since same-sex pairs do not exhibit the complementarity of the sexes in the relationship, nor have any ability to procreate, nor provide children with both a mother and a father, then the law should be able to treat them differently. Indeed, to treat these relationships as “marriage,” or as somehow legally equivalent to marriage, is to commit an injustice against those who are married in the full and proper sense (their existing marriage is “diluted” and deprived of its intrinsic connection to procreation and parenting). It also is an injustice to the children raised by same-sex couples, since they are being knowingly deprived of either a mother or a father. Interestingly, Scandinavian countries, which paved the way for the legal recognition of same-sex unions, were reluctant to extend to such couples the ability to adopt or use artificial techniques of reproduction—because they were concerned about the effects of raising children this way. In the United States, however, a number of states, among them Massachusetts and Vermont, allowed same-sex couples to adopt before they allowed them to get “married” or enter a “civil union.” In conclusion, however the law treats same-sex relationships—and it must be recognized that the law in western democracies is quite permissive and tolerant of such relationships—there is no sense in which they can be considered to be equivalent to marriage.

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Statistics

62% of Americans believe that marriage is the union of a man and a woman
Data from Scandinavia shows that gay male couples were 50 per cent more likel) to divorce as married opposite-sex couples and lesbian couples 167 percent more likel) to divorce as opposite-sex married couples over a similar period of time. iMapp Policy Brief (2004)

Internet links

"A rabbi speaks out". National Post (Canada). 25 May 2005. The sages of the Talmud would give short shrift to gay marriage.
Policy Agenda: Polls of community attitudes in the US. Surveys about whether Americans should accept homosexuality often draw different responses depending on the examples mentioned.
Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-Being (2004)
The End of Marriage in Scandinavia: The "conservative case" for same-sex marriage collapses. (2004) by Stanley Kurz in The Weekly Standard.