Friday, April 08, 2011

Evan Wolfson on the "Basic Biology" Argument

In his 2004 book, Why Marriage Matters: America, Equality, and Gay People's Right to Marry, Evan Wolfson compellingly refutes the "basic biology" argument against same-sex marriage.

Of course, in certain Catholic circles, this particular argument, as outlined by Wolfson, is basically the "Natural Law" argument – one that's vigorously championed by the clerical caste and by folks like Janet Smith.

Following is an excerpt from chapter four of Evan Wolfson's Why Marriage Matters.


If you go to any of the hundreds of fundamentalist Web sites on the Internet today, you have a good chance of coming across a list of talking points against “same-sex marriage.” One such script, put together by the Christian radio show Point of View, gives thirteen reasons why listeners should be opposed to gay couples’ freedom to marry. High on the list is a lesson in “basic biology.” According to Point of View’s script, anti-marriage-equality activists are supposed to say, “Homosexual relations deny the self-evident truth that male and female bodies complement each other. Human sexuality and procreation is based upon a man and a woman coming together as one flesh. Marriage between a man and a woman promotes procreation and makes intimate sexual activity orderly and socially accountable."

. . . At first glance, the “basic biology” argument seems to make some sense. After all, it doesn’t take more than a fourth-grade health class education to know that men’s and women’s bodies in some sense “compliment each other” and that when a man and a woman come “together as one flesh” it often leads to procreation.

. . . Because the “basic biology” argument just seems so, well, basic, I understand why some people want to stop right there. But, as I’m sure many of you have already realized, the overstated link between procreation and marriage actually doesn’t explain why we bar same-sex couples (and same-sex couples alone) from marriage as it now exists under law and in our society. In fact, once you scratch the surface of this argument – which is actually more of a gut feeling than a thought-out rationale – you can see that it’s riddled with holes. And thankfully, these are holes that the justices in Hawaii, Vermont, and Massachusetts saw right through.

. . . In the Hawaii freedom-to-marry case that Dan Foley and I litigated, Judge Kevin Chang wrote:

In Hawaii, and elsewhere, people marry for a variety of reasons including, but not limited to the following: (1) having or raising children; (2) stability and commitment; (3) emotional closeness; (4) intimacy and monogamy; (5) the establishment of a framework for a long-term relationships; (6) personal significance; (7) recognition by society; and (8) certain legal and economic protections, benefits and obligations.

“Gay men and lesbian women,” the judge found, “share this same mix of reasons for wanting to be able to marry,” a mix that may including having, or caring for, one’s kids, but often does not, and that for many couples turns on other important aspects of marriage.

In Vermont, Chief Justice Jeffrey Amestoy seemed to find it hard to take the state’s “procreation” argument seriously. If Vermont truly based a couple’s competency to marry on that couple’s ability to procreate, he suggested, state officials might want to take a second look at some of the marriage licenses they have been issuing.

It is . . . undisputed that many opposite-sex couples marry for reasons unrelated to procreation, that some of these couples never intend to have children, and that others are incapable of having children. Therefore, if the purpose of the statutory exclusion of same-sex couples is to “further the link between procreation and child rearing,” it is significantly under-inclusive. The law extends the benefits and protections of marriage to many persons with no logical connection to the stated governmental goal.

And in Massachusetts, Chief Justice Margaret Marshall didn’t even wait to write the court’s decision in the case before letting the state’s attorneys know what she thought about their use of the “promotion of procreation” as Massachusetts’ justification for excluding gay couples from marriage.

“I think it would be a stretch to say it was for procreation,” she said to the state’s lawyers during the oral argument. “The State is free to say, for example, after a heterosexual couple has been married for ten years and has produced no children, unless there is evidence that both are infertile, that they should be divorced so that thy can be free to marry to try and procreate with another couple?” Despite the asserted link between marriage and procreation put forward to justify excluding gay couples, the state refused to apply any such link to heterosexuals “For the State to draw the line that way would be an impermissible intrusion into the private lives of the people involved,” the assistant attorney general replied (giving no similar weight to the intrusiveness of denying gay people the right to marry and make their own parenting and personal choices like non-gay couples).

Chief Justice Marshall then pointed out that Massachusetts (like Vermont) not only allows non-procreative couples to marry and stay married, but also permits gay parents to adopt, has many parents who conceived their children through alternative insemination and other means, and has a strong public policy of supporting kids, no matter h their parents are or what their family configuration is.

Indeed, even U.S. Supreme Court Justice Antonin Scalia, hardly a proponent of equal rights for gay men and lesbians, wrote in his 2003 dissent to Lawrence v. Texas that the promotion of procreation is a very weak argument for maintaining bans on gay people’s freedom to marry. “If moral disapprobation of homosexual conduct is ‘no state interest’ for purposes of proscribing [private adult sex],” Scalia wrote, “what justification could there possibly be for denying the benefits of marriage to homosexual couples? Surely not the encourage of procreation, since the sterile and the elderly are allowed to marry.”

. . . But now let’s put these constitutional, legal, and historical understandings of marriage and love aside for a moment and instead focus on some of the commonsense reasons why the procreation argument doesn’t work to explain or justify the denial of gay people’s freedom to marry. First there is the point raised by Vermont’s Chief Justice Amestoy and by U.S. Supreme Court Justice Scalia: No state requires that non-gay couples prove that they can procreate – or promise that they will procreate – before issuing them a marriage license. Indeed, no state requires as a condition of a valid marriage that a couple promises to even engage in sexual intercourse, which would be required for traditional procreation.

And when states issue marriage licenses, none of them come with a “sunset provision,” whereby a couple has two or three years to produce a child or the marriage expires. Just imagine how such a law could put millions of marriages in jeopardy.

. . . Every U.S. state routinely issues marriage licenses to elderly, sterile, and even impotent couples. No state requires them to procreate or to raise children; states recognize that these couples have many other reasons for wanting to marry, including, yes, love, adult companionship, mutual caring and support, and personal commitment.

Meanwhile, every state also recognizes that these and other couples can, and very often do, become parents through adoption or any of a number of other approaches to child-bearing, including donor insemination and surrogacy. The “basic biology” argument ignores that gay and lesbian couples do have, and will continue to have, children by these same means.

See also the previous Wild Reed posts:
Nathanial Frank on the "Natural Law" Argument Against Same-Sex Marriage
A "Fruit" Reflects Upon "Fruitfulness"
John Corvino on the "Always and Everywhere" Argument
Patrick Ryan on the "Defense of Traditional Marriage" Argument
Dr. Erik Steele and the "Naked Truth on Same-Sex Marriage"
Dale Carpenter on the "Win-Win" Reality of Gay Marriage
Two Attorneys Discuss Same-Sex Marriage
Steve Chapman: "Time is On the Side of Gay Marriage"
Stephanie Coontz on the Changing Face of "Traditional Marriage"
A Message to NOM (and the Catholic Hierarchy)
A Catholic Statement of Support for Same-Sex Marriage


Clarence said...

When I was growing up, we were told that the church says the purpose of sex is procreation and that married couples who do not want more children should no longer be having sex. I think this pretty much shoots down the biology argument. If a man and a woman's bodies are no longer coming together like that, should the not be allowed to be married?

Mark said...

Post 1 of 2: A traditionalist might post the question this way: why did marriage, in any form, come to exist in the first place? The answer to that question provides a ground for the social function of marriage. Then legal protection is given to that social function.

All Wolfson does is describe the social function of marriage in the modern moment. Look again at the quote from the Hawaii case. What does this tell you about the modern social function of marriage? It tells you what people value today:

(1) having or raising children
(2) stability and commitment
(3) emotional closeness
(4) intimacy and monogamy
(5) the establishment of a framework for a long-term relationships
(6) personal significance
(7) recognition by society
(8) certain legal and economic protections, benefits and obligations.

In the last 100 years of social change in the West, what was once seen as legal protection given to a particular relationship has morphed into a definition of that relationship, in a way that supersedes prior definitions.

For an example of a prior definition, have a look at the Roman Catholic Rite of Marriage. The English version reads (in part):

First, reception of consent:

1 - "(Name) and (name), have you come here freely and without reservation to give yourselves to each other in marriage?"

2 - "Will you honor each other as man and wife for the rest of your lives?"

3 - "Will you accept children lovingly from God, and bring them up according to the law of Christ and his Church?"

Second, exchange of vows:

Priest (or deacon): Since it is your intention to enter into marriage, join your right hands, and declare your consent before God and his Church.

Groom: I, (name), take you, (name), to be my wife. I promise to be true to you in good times and in bad, in sickness and in health. I will love you and honor you all the days of my life.

Bride: I, (name), take you, (name), to be my husband. I promise to be true to you in good times and in bad, in sickness and in health. I will love you and honor you all the days of my life.

Third, the Church's minister acknowledges the spouses' consent to one another:

The priest acknowledges that the couple have declared their consent to be married, prays for God's blessing on the couple, and declares, "What God has joined, men must not divide" (Rite of Marriage #26). This is the point at which, sacramentally, the bride and groom become wife and husband.

Fourth, rings are exchanged:

Groom (placing the wedding ring on his wife's ring finger): (Name), take this ring as a sign of my love and fidelity. In the name of the Father, and of the Son, and of the Holy Spirit.

Bride (placing the wedding ring on her husband's ring finger): (Name), take this ring as a sign of my love and fidelity. In the name of the Father, and of the Son, and of the Holy Spirit.

Mark said...

Post 2 of 2. A way to look at the disconnect is to say:

For Roman Catholics, marriage is the mystery of establishing the smallest possible community of faith: a family. It is an act of hope because (as I can personally attest) there is no certainty that a couple can have children. This is apart from the question of "Do the partners wish to have children?"

According to the text of the rite, Roman Catholics value:

- Consent freely given & received
- Mutual honor
- Openness to children
- Truthfulness
- Open-ended commitment without reservation
- Love and faithfulness modeled on the Holy Trinity

The list Wolfson gives can be seen a couple of ways. One way is as a summary of the legal consequences of social reality of the marriage relationship. A second way is (as the law is always about how people actually behave, in addition to how we'd like people to behave) as a list of the reasons people pair up:

- having children (if possible)
- raising children (if possible)
- stability (sometimes)
- commitment (sometimes)
- emotional closeness (sometimes)
- intimacy (sometimes, as the partners define it)
- monogamy (sometimes, as the partners define it)
- the establishment of a framework for a long-term relationships (the word "term" has many definitions)
- personal significance (VERY IMPORTANT)
- recognition by society
- certain legal and economic protections, benefits and obligations.

I call "personal significance" "VERY IMPORTANT" because, in American modernity, I see individual liberty as the highest value, the value all other possible values are judged by.

The push-back, not always consistent, reasonable or rationally stated, against changing the social and consequently the legal definition of marriage is (in my example) the tension between the Catholic value:

- establishing the smallest possible community of faith, a community that is completed with the arrival of children

Roman Catholics have a whole bunch of rules about children, how to make them, and how to raise them. No need to restate all that here.

and the modern, American value:

- individual liberty

What do you think of this idea?