Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, February 24, 2009

Are same-sex partners more like elderly sisters or heterosexual spouses?

I appreciate Ryan Anderson and Sherif Girgis's thoughtful response to the Rauch/Blankenhorn proposal, but I confess that I still have a hard time figuring out why we should treat a same-sex couple more like a pair of elderly sisters than like a married heterosexual couple.  Here's how Anderson and Girgis articulate the importance of heterosexual marriage:

As a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child, marriage not only fulfills human beings as embodied, sexually complementary persons; it is also oriented to the bearing and rearing of children. Because those children are society’s youngest and most dependent citizens, the public has an interest in healthy marriages. So legally and socially enforcing marital norms makes sense. By attaching a father to his children—and to his children’s mother—exclusively and for life, marriage serves society’s interests by securing for children the love and care of both mother and father. A well-ordered society thus supports marriage as an institution that fulfills the adults who choose to enter it and serves the children who may come as its fruit.

I agree with this portrayal of marriage's importance and why the state has an interest in encouraging and stabilizing marital norms, but why does that interest not extend to same-sex couples?  Their bodily union is not "naturally fulfilled in the conception of a child," but that does not make them ill-equipped for the raising of a child, and the state surely has an interest in that endeavor.  I have not seen a persuasive case made that same-sex couples are ill-equipped for the raising of a child, and my own (limited and fallible) experience pushes me toward the opposite conclusion.  Assuming that likely candidates for same-sex marriage are not likely candidates for traditional marriage, don't the state's interests in the social and personal functions of marriage also suggest that the state has an interest in encouraging similar commitments among gays and lesbians?  If it boils down to the nature of the sexual union, why should we be surprised that folks like Nussbaum reach the conclusions they do (i.e., that it's really about condemnation of gay sex)? 

None of these arguments are new, of course, but for me, it boils down to: why is the social function of marriage threatened by making it available to a category of people who cannot currently participate because of the nature of their sexual attraction?  Expanding marriage's accessibility, one would think, also makes it more central to the social order.  In order to hold otherwise, one would have to show that same-sex relationships subvert the social function of marriage in meaningful ways.  I don't think the nature of the sexual act argument is convincing, nor have I seen persuasive evidence to support the argument that same-sex couples are incompetent parents.  


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