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, October 6, 2009

Marriage's procreative boundaries: who's left out?

I can join Robby in agreeing with Gerry Bradley's point about there being no morally neutral definition of marriage.  But to the extent that Prof. Bradley seeks to establish that marriage should be defined in law as a procreative institution, I still have questions.  Put simply, why must we define marriage as a procreative institution, rather than as a child-rearing institution?  The examples he uses to buttress his claim of how the law protects the biological relationships within the family -- bans on polygamy, incest, adultery, fornication -- are noticeable for what is omitted: there is no mention of adoption.  Should adoption be viewed as a concession to a fallen world, an exception to the procreative boundaries of marriage?  Or should adoption be viewed as fully in keeping with the nature of the marital relationship, to be stabilized, protected, and even celebrated by our public understanding of why marriage is such a vital social institution?  One concern I have is that, by defining marriage in a way that can logically exclude same-sex couples, we also marginalize family relationships that are not biological. 

I should also note that I don't see Robby's arguments against same-sex marriage as exhibiting the same tendency, for he, at least in my reading, focuses more on the nature of the procreative act, rather than on the procreative origins of the parent-child relationship.  I have no reason to believe that Prof. Bradley disagrees with those arguments, but he's emphasizing another aspect in this post, and that emphasis sends some significant, if unintended, messages about some relationships counting more than others.  For Robby, my question has been whether the nature of the act can carry the normative/policy weight he places on it, and this in turn gets back to the question of whether I'm a hopeless instrumentalist . . .


Vischer, Rob | Permalink

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