Maggie Gallagher Guest-Blogging About Same-Sex Marriage:

I'm delighted to say that Maggie Gallagher will be guest-blogging this week about same-sex marriage. Maggie is founder and president of the Institute for Marriage and Public Policy; National Journal named her to its 2004 list of the most influential people in the same-sex marriage debate. Maggie has also written extensively on marriage and family more generally; she's the coauthor of The Case for Marriage: Why Married People are Happier, Healthier and Better-Off Financially.

Maggie, as many of you know, is a leading opponent of same-sex marriage. In a couple of weeks, I also look forward to having as a guest-blogger Dale Carpenter, a law professor at University of Minnesota and a prominent proponent of same-sex marriage. (I'd thought of having them guest-blog at the same time, but decided to try a less head-to-head exchange; we'll see in several weeks how well that has worked.) Many thanks to Maggie and Dale for joining us.

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[Maggie Gallagher (guest-blogging), October 17, 2005 at 10:34am] Trackbacks
The Marriage Debate:

Thanks to Eugene and also to Dale Carpenter whose work I admire a great deal.

Recently I had a front row seat at the great Andrew Sullivan v. David Blankenhorn debate on gay marriage at the Institute for American Value’s annual symposium.. It was like watching two majestic battleships, armed and deadly with torpedoes ready, pass each other harmlessly by. The testoterone level was high but they were punching air.

David, who has spent the last two years researching a book on marriage as a cross-cultural universal human phenomenon, and that last twenty years building the nation’s most influential think tank on marriage and fatherhood, said something like this (I’m quoting from memory here):

David: “Marriage is a trans-legal social institution whose main mission is creating sexual unions between men and women so they create families where children have fathers as well as mothers.”

Andrew Sullivan: “That’s a fantasy.” (Andrew cited the usual argument: lots of married couples don’t have children and lots of children aren’t born to married couples.)

Two very bright people, face to face, mano a mano, looked each other in the eye and saw--a blank wall.

A lot of this debate is like that.

I’ve learned from much experience that when two intelligent people cannot even understand how the other person’s can possibly believe their own argument—that’s when something really interesting is going on.

I have no illusions I’m going to spend this week persuading people to change their minds on gay marriage. So I’d like to try to do something else big and important: to “achieve disagreement”. To figure out for myself, and maybe for you too, what has changed that makes the original, cross-cultural, historic understanding of marriage literally unintelligible to so many of this country’s best and brightest. In the process, maybe some advocates of gay marriage will understand why, quite apart from any disagreement about sexual orientation, so many Americans are deeply disturbed by the idea of gay marriage.

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[Maggie Gallagher (guest-blogging), October 17, 2005 at 12:14pm] Trackbacks
The Marriage Debate

Thanks by the way for all your comments, especially this one: "Before belly-flopping into an already acrimonious debate on same-sex marriage, would someone please define exactly what marriage is supposed to accomplish. Perhaps then the debate can proceed on firmer terra."

Here’s my short answer: marriage serves many private and individual purposes. But its great public purpose, the thing that justifies its existence as a unique legal status, is protecting children and society by creating sexual unions in which children are (practically) guaranteed the love and care of their own mother and father.

The vast majority of children born to married couples begin life with their own mother and fathers committed to jointly caring for them. Only a minority of children in other sexual unions (and none in same-sex unions) get this benefit.

Sex makes babies. Society needs babies. Babies need fathers as well as mothers. That's the heart of marriage as a universal human institution.

Please note: Procreation is not the definition of marriage. It is the reason for marriage’s existence as a public (and yes legal) institution. People who don’t have children can still really be married (just as people who aren't married can and do have babies).

But if sex between men and women did not make babies, then marriage would not be a universal human institution, or a legal status in America. Yes, many people like intimacy—is that a good reason for the government to stamp the good housekeeping seal of approval on certain intimate relationships, but not others?

(Note: I’m aware the short description above does not answer all legal arguments about equal protection. Patience. BTW, the legal debate would be sharpened if more people participating in it distinguished between the individual interest and the state interests in marriage).

For a longer explication of this argument see my debate with Andrew Koppelman in the U. of St. Thomas Law Review, "(How)Will Same-Sex Marriage Weaken Marriage as an Institution?"

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[Maggie Gallagher (guest-blogging), October 17, 2005 at 1:51pm] Trackbacks
The Marriage Debate:

For those who want evidence that procreation is an important public purpose for marriage, A quick sampling:

From U.S. law.

“[T]he first purpose of matrimony, by the laws of nature and society, is procreation.” Baker v. Baker, 13 Cal. 87, 103 (1859). “he procreation of children under the shield and sanction of the law” is one of the “two principal ends of marriage.” Sharon v. Sharon, 75 Cal. 1 (1888) (quoting Stewart on Marriage and Divorce, sec. 103. “Procreation, if not the sole, is at least an important, reason for the existence of the marriage relation.” Davis v. Davis, 106 A. 644, 645 (N.J. Ch. Div. 1919). “The great end of matrimony is . . . the procreation of a progeny having a legal title to maintenance by the father.” Laudo v. Laudo, 197 N.Y.S. 396, 397 (App. Div. 1919); Poe v. Gerstein, 517 F.2d 787, 796 (5th Cir. 1975) (“[P]rocreation of offspring could be considered one of the major purposes of marriage. . . .”); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. App. 1974) (“[M]arriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.”); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972) (“The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”); Heup v. Heup, 172 N.W.2d 334, 336 (Wis. 1969) (“Having children is a primary purpose of marriage.”); Zoglio v. Zoglio, 157 A.2d 627, 628 (D.C. App. 1960) (“One of the primary purposes of matrimony is procreation.”); Frost v. Frost, 181 N.Y.S.2d 562, 563 (Supr. Ct. New York Co. 1958) (discussing “one of the primary purposes of marriage, to wit, the procreation of the human species.”); Ramon v. Ramon, 34 N.Y.S. 2d 100, 108 (Fam. Ct. Div. Richmond Co. 1942) (“The procreation of off-spring under the natural law being the object of marriage, its permanency is the foundation of the social order.”); Stegienko v. Stegienko, 295 N.W. 252, 254 (Mich. 1940) (stating that “procreation of children is one of the important ends of matrimony”); Gard v. Gard, 169 N.W. 908, 912 (Mich. 1918) (“It has been said in many of the cases cited that one of the great purposes of marriage is procreation.”); Lyon v. Barney, 132 Ill. App. 45, 50 (1907) (“[T]he procreating of the human species is regarded, at least theoretically, as the primary purpose of marriage . . .”); Grover v. Zook, 87 P.638, 639 (Wash. 1906) (“One of the most important functions of wedlock is the procreation of children.”); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980), aff’d 673 F.2d 1036 (9th Cir. 1982) (observing that a “state has a compelling interest in encouraging and fostering procreation of the race”);

A New Jersey court waxed lyrical on this point: “Lord Penzance has observed that the procreation of children is one of the ends of marriage. I do not hesitate to say that it is the most important object of matrimony, for without it the human race itself would perish from the earth.” Turney v. Avery, 113 A. 710, 710 (N.J. Ch. 1921)

Some evidence on the anthropological point: “Although the details of getting married – who chooses the mates, what are the ceremonies and exchanges, how old are the parties – vary from group to group, the principle of marriage is everywhere embodied in practice. . . . The unique trait of what is commonly called marriage is social recognition and approval . . . of a couple’s engaging in sexual intercourse and bearing and rearing offspring.” Kingsley Davis (ed.), Contemporary Marriage: Comparative Perspectives on a Changing Institution (New York: Russell Sage Foundation) (1985).

"Marriage is a universal social institution, albeit with myriad variations in social and cultural details. A review of the cross-cultural diversity in marital arrangements reveals certain common themes: some degree of mutual obligation between husband and wife, a right of sexual access (often but not necessarily exclusive), an expectation that the relationships will persist (although not necessarily for a lifetime), some cooperative investment in offspring, and some sort of recognition of the status of the couple’s children. The marital alliance is fundamentally a reproductive alliance." Margo Wilson & Martin Daly, Marital Cooperation and Conflict, in Evolutionary Psychology, Public Policy and Personal Decisions 197, 203 (Charles Crawford & Catherine Salmon eds., Lawrence Erlbaum Assoc. 2004)

Its certainly possible, guys, to argue that marriage's public purpose has changed, or is no longer relevant, or that same-sex marriage doesn't threaten this interest.

But really not to say that I'm just making up this whole procreation and marriage thing.

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[Maggie Gallagher (guest-blogging), October 17, 2005 at 6:03pm] Trackbacks
The Marriage Debate, Round 3 (or 4, but who’s counting?):

O.K., I think we are actually making progress. Progress, I mean, towards the goal of achieving disagreement. I’m no Socrates. I have no illusions that if you accept certain opening premises (like, say, the broad and deep historical connection between marriage and procreation), down the road you are going to have to say, “Gee, Maggie, only a fool could disagree.”

One of the signs of progress towards disagreement is the shift among commentators to another key question: well, o.k. Maggie, so just how exactly will SSM threaten procreation? It is an important question. And I’m going to answer it. But not yet.

I want first to continue on the foundational question: why I think procreation is the main public purpose of marriage, in the sense of being the driving force behind its unique legal status (Remember, individuals or religions may have other reasons; I’m talking about why government in our system is involved in marriage and not other intimate adult relations).

Let me offer 2 additional reasons why I believe in the primacy of procreation (not, remember, as the definition or the essence of marriage—marriage is a sexual, financial, emotional union of husband and wife) but as the main reason why marriage exists as a legal status and as a universal human idea.

1. Internal coherence. The first reason is internal evidence from the structure of marriage in our received legal tradition. Procreation provides the “coherence” for our received definition, the thing that explains its core features, in way that other reasons do not. The California Baker court in 1859 laid out the the prime reason as procreation and a second reason as the happiness of the couple. Fair enough. But how does the happiness of the couple explain why two and only two people can get married? Or why two people, in order to be happy, must have sex?

By contrast, procreation (or to be more accurate, managing the procreative consequences of sexual attraction between men and women) provides an answer to all these questions: Why two? Because two and only two people make the baby. Any other arrangement involves not a full union of parents but a subdivided one. Why a sexual union and not some other loving kind? Because sex makes babies.

One of the problem SSM advocates have is coming up with an alternate reason for marriage that explains why, out of all the intimate relations adults forms, only certain kinds of interpersonal unions are eligible to be marriages. Marriage is about love they say. Legally, love defines marriage even less tightly than procreation. You can love your mistress and hate your wife, and that doesn’t mean your mistress is your wife. You can love many people but only have one wife. Why? And why do you have to have sex with people you love? (Note: I'm not arguing that SSM will lead to polygamy. Personally, I think it will lead to de-institutionalization of marriage altogether, not to polygamy.Instead I'm pointing out that under their theory of why marriage exists, advocates of SSM cannot explain any of marriage's ordinary legal features).

2. Universality. Many features of our specific marriage system are not universal. Monogamy for example, is the exception in human history (although most large complex societies have this marriage system). But all of these systems (with very few and very limited exceptions) define marriage as male and female. Why? You don’t find that many human universals.

BTW this is true even in the many small tribal societies that institutionalize and approve same-sex (male) relations in many contects. That is these societies also seem to reserve marriage for those relations that are as Kingsley Davis said socially approved for sexual intercourse and baby-making.

The argument I am making is this: every society needs to come up with some solution to the fact that the default position for male-female sexual attraction (that is unregulated by law or society) is many children in fatherless homes. The second human reality societies must face is that procreation is not optional, it is necessary. Individuals don’t have to do it but societies do. The word for the social institution that addresses these problems, in this and every known human society is marriage.

Sex makes babies, Society needs babies, babies need mothers and fathers.

I think there is powerful evidence that these “facts on the ground” really do explain marriage in some sense better than any alternative explanation on the table.

Next post: how these facts on the ground affects the legal arguments for SSM.

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[Maggie Gallagher (guest-blogging), October 18, 2005 at 12:17am] Trackbacks
Marriage Debate Digression:

There's a petition circulating in Massachusetts to define marriage as the union of husband and wife in the state constitution. In a bid to discourage anyone from signing the petition, a couple of activists have posted the petition names on the internet.

A friend pointed out to me the following post from Livejournal.com: http://www.livejournal.com/users/mmeubiquitous/119651.html?thread=253795#t253795

"You do realize, I hope, that the names and addresses of all the signatories will be posted on the web, since it's a matter of public record... if you signed, don't be surprised if it has reprocussions (sic) in your future. I, for example, am professionally a manager, and from time to time I do hiring. I will most certainly be vetting all applicants against the list of petitioners in the future to ensure I don't hire anyone who signed, because I wouldn't be able to trust them to behave professionally toward gay coworkers. . ."

No doubt it is mostly hot air. Still, does this whole thing give anyone else the creeps? Can anyone explain why?

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[Maggie Gallagher (guest-blogging), October 18, 2005 at 1:59pm] Trackbacks
The Legal Marriage Debate:

The same-sex marriage debate is really three debates: a legal debate, a social policy debate and a moral debate.

Of course people’s views on these things are intertwined, but intellectually the failure to separate these three related but distinct inquiries is one reason that exchanges of views on this topic are so often circular and futile, rather than progressing towards better mutual understanding.

When you make a point on the social policy question, people will often jump horses to the legal question, and vice versa.

So let me focus for a moment just on the legal debate. I’ll try to keep it brief.

When marriage has lost in court, we’re mostly losing on the rational basis test. This is really hard to do, and also quite insulting. It is a declaration by the court that only madness or malice can possibly explain why 60 to 70 percent of Americans today see marriage as the union of husband and wife.

Here’s how it looks from my side: You want to strip from the law of marriage the one feature that has been practically universal in human experience: and you can’t imagine even one reason why a person of sound mind and good will might object? Gee, Horatio, maybe there are more things on heaven and earth . . .

If courts really are applying a rational basis test, then marriage easily meets the test.

The classification used in marriage (sexual union of male and female) is clearly substantively related to a legitimate state purpose (“procreation and paternity” or creating the only kind of sexual unions in which men and women can make babies and raise them together).

The fact that not all married couples have children does not make their marriage unrelated to this state purpose. At a minimum no married couples who lives up to their vows will produce out of wedlock children, so all unions of male and female serve these state purposes in a way that no same-sex couple can. The only practical way a couple can guarantee that all the children they conceive will have this benefit is to first enter an exclusive faithful sexual union.. (People who want the data on the prevalence unintentional pregnancy in male-female sexual unions can consult the link to the U of Thomas essay listed below. It has lots of footnotes).

(BTW, under the rational basis test, it is not even necessary to provide the evidence I’ve offered below that the one of theprimary purposes of marriage has long been understood to be procreation. The court must consider any conceivable rational reason the legislature may have had.)

Many folks in this debate want something else than a rational relation: they want direct evidence of the harm that would come to this purpose of marriage by including gay couples. That is an important question for a state legislature, but it is not (or should not) be necessary to justify our marriage laws under a rational basis test. (Some better scholar than I might want to contemplate what the idea of "substantive rational relations" is going to do to our constitutional theory)

Every classification used by law excludes some people who could be included without obviously harming that law’s purpose. (e.g. If the purpose of speed limits is safety, then “drivers who do 56 mph” could be included without harming the state interest at stake. )

As the Goodridge dissent noted some undisclosed form of heightened scrutiny on some undisclosed suspect class must be being brought to bear. The Goodridge majority are the people with some motive here they do not want to disclose.

On strict scrutiny, I’m not going to delve deeply into this. I think it’s not hard to show the interests at stake in marriage are compelling, but figuring out what “narrowly tailored” means in this instance reveals a certain oddity of the structure of the pro-SSM argument. The remedy SSM advocates seek is not to tailor marriage more narrowly to this interest, but to widen it, to make the classification employed by the law even less related to this compelling state interest.

(I think the actual role of the fact that some marriage couples have no children in the structure of the pro-SSM legal argument is to suggest that procreation is not now, nor has ever been, one of the primary purposes of marriage, and those who suggest this are hiding some other motive. I also think this argument is pretty hard to sustain, if reason prevails).

On the gender equality issue, here I think there are sharp differences between marriage as the union of husband and wife and bans on interracial marriage (Loving v. Virginia). Marriage plays an integrative function with regard to gender: its a mixed sex institution. Moreover unlike bans on miscegenation (which were formally equal but substantively served to help keep the races separate so that one race can oppress the other), marriage not only formally, but substantively furthers gender equality, by helping reduce the likelihood that women as a class will bear the high and gendered costs of parenting alone.

(Orientation has not yet been declared a suspect class subject to strict scrutiny, to my knowledge.)

Ok, next, onto the question: What am I worried about? What’s the possible harm of SSM?

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[Maggie Gallagher (guest-blogging), October 18, 2005 at 2:34pm] Trackbacks
Answer from Maggie About Marriage:

Todd, thanks for the question!

I don’t think reproductive technologies change the legal principles surrounding marriage, much, with one big exception, which I’ll get to.

Marriage is a universal human institution because every society needs to regulate the procreative consequences of male-female sexual attraction. (Marriage regulates people who aren’t married by the way, e.g. by making it clear when a baby is going to be born “out of wedlock” . . .This turns out to be quite substantively important for women, who often confuse things like cohabitation with a man’s willingness to be married to them. Marriage as a public category also lets single, as well as married people know when they are committing an act of adultery. Without clear boundaries it could be pretty hard to tell sometimes!)

So marriage as a legal status is one of the ways we get young men and women to do any one of the hard things necessary to make sure they postpone babies until they are married. Marriage is a way of wrestling with the fact that, men and women attracted to the opposite sex can just make a baby, with no intention or forethought, under the grip of a pretty powerful passion to boot: One drink too many and 9 months later, boom there’s a baby. Mom (if she doesn’t abort) is bound to be somewhere around. Dad isn’t necessarily anywhere nearby.

Reproduction via technology is never the result of male-female sexual passion. Let me put it this way: there may be a need for special laws regulating parenting around reproductive technology but they will be distinct from, and need have little to do with, the function that marriage is performing. And if we had to depend on reason and reproductive technology rather than sexual passion to produce the next generation, we’d be in trouble. I mean numberswise.

Secondly, there is an important distinction in law and public policy between encourage, permit, permit but discourage, and ban. Women are legally free to have a baby out of wedlock, too. but that doesn’t mean we no longer care whether children are born to married couples. Marriage is about trying to encourage the ideal. Like adoption, reproductive technology (in current law) is probably best seen not as normative but ameliorative—a happy answer to a less-than-ideal situation. (Some of us are enthusiastic about the former and dubious about the latter, but that’s not part of the marriage debate, particularly).

The one part of reproductive technology that I think is a direct attack on marriage, has nothing to do with technology at all: it is the decision of the law to strip some children of their legal and natural right to father, merely because the mothers in this instance do not want their child to have a father. This is the only instance in which the law permits parents to bargain away their child’s right to the support and care of a father. I can’t do it in a bar, why should I be able to do it in a medical clinic?

There’s a small but growing group of adult children of donor insemination who are getting quite vocal on this point. When the clinic points out their mom and dad signed a contract, they say “I never signed it!”

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[Maggie Gallagher (guest-blogging), October 18, 2005 at 3:04pm] Trackbacks
Maggie Answer on Marriage, P.S.

In terms of its relation to marriage you can do one of two things with reproductive technology. You could say, only married people can use it, on the grounds that you should not be affirmatively at law encouraging people to have babies out of wedlock.

Or you could instead analogize to unwed childbearing and say, gee, if we are going to permit so many single parents to have babies as a result of sexual passion, why should we ban thoughtful single parents from reproducing using technology?

But neither line of argument threatens the core case for marriage.

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[Maggie Gallagher (guest-blogging), October 18, 2005 at 11:38pm] Trackbacks
The Marriage Debate and ReproTech:

Just a bit more, Todd:

Given how powerfully pro-technology we Americans are (yes, me too), I think it’s worth pointing out out that in the vast majority of cases described as instances of “reproductive technology”, what we are talking about is the technology of the turkey baster. People have known for hundreds of years how to do this. (Artificial insemination is documented in animals from the 18th century). For good or ill, the main changes that make reproductive technology prominent are social, not technological.

I’d also like to reply to some significant pushback I’m getting, in my personal letters. (And maybe Todd a certain undertone in your post). Many people don’t recognize in this somewhat flat description of marriage I'm laying out, their own marriages, or their religious tradition’s vision of marriage. (I’m getting chastized by certain Catholics who want to point out marriage is a one-flesh union that cannot be "reduced" to procreation)

Let me say two things. First, what I’ve been rather methodically laying out so far is the state’s interest in marriage. People don’t get married in order to satisfy the state’s interest. Moreover, marriage is not an institution the law created, or can create. It pre-exists law, and has meaning only if many actors other than the law sustain it. Marriage has social power and can serve the law's purposes, only if it is embedded in a culture in which people highly value and idealize the union marriage embodies. People protect children by entering faithful, permanent "one flesh" unions, but they don't view these marriages as mere instruments for making babies. Nor do I.

Secondly, behind the flat language I'm describing as "procreation and paternity" is great erotic mystery. This is the way I put it in a recent syndicated column “How I Entered the Penguin Wars. (All of my columns are archived at www.uexpress.com, if you want the full context).

“the human experience of generativity—sexual love (or lust) joining male and female in a physical act that produces new life; gestation, birth, and the transformation of one another through acts of our bodies into something as mysterious as a mother and a father; and most marvelous of all, making a baby—this is a big, brute, fact about human existence. It’s not going to go away.. .

Of course not everyone does this amazing thing. But those who don’t, whether straight or gay, need not set themselves against this story, or view it through the lens of grievance culture. We can all choose to participate, if only vicariously. We are products after all of this mysterious Eros, and our shared future depends on men and women willing to give themselves to it.”

But if I say anything like that here, people might say I’m emotional. . .

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