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.

Friday, December 17, 2010

What is Marriage?

Last week Robby George, Sherif Girgis, and Ryan Anderson posted a new paper, "What is Marriage?"  Kenji Yoshino responds here, calling it "the best argument against gay marriage," but ultimately rejecting it.  George et al. have now replied to Yoshino.

https://mirrorofjustice.blogs.com/mirrorofjustice/2010/12/what-is-marriage.html

Vischer, Rob | Permalink

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Thanks for this link.

The argument that changing the law of marriage doesn't hurt anyone is incredibly dishonest because it actually defies the whole concept of socialization. We learn as we mature, learning first from our parents and then learning from our neighbors and the broader society. To clarify the point, I am married at 68 years of age. No law is going to change our marriage of forty-three years. My children are all married, and it is unlikely that any change of the law would have much influence on them either, but their children range in ages, it this moment, from four months to sixteen years. Who knows what their future children will experience in the middle decades of this century (what I like to call "this millenium so far").

But one thing that no rational person can say is that their interpersonal relations will be defined in isolation from the laws and conventions of the society around them. The single most essential function of society is to teach, starting with the tiny home society. But the gays are attempting to deny that society teaches. That claim is entirely dishonest and incredible. They might as well deny that the sun rises in the East.

Posted by: Joel Clarke Gibbons | Dec 17, 2010 9:32:33 AM

Rob,

It would be helpful to know whether the title of Yoshino's piece was his choosing or the blog editor's. For it's not clear to me that Yoshino thinks this argument is very good at all.

Posted by: WJ | Dec 17, 2010 9:33:13 AM

Joel;

Allowing same-sex marriage will not hurt you or your children or their children. Allowing homosexuals to publicly express their love and fidelity for each other will do you and your children no harm. They will be free to express their love and fidelity to whomever they wish also.

Interpersonal relations are not defined in isolation from laws and conventions of surrounding society. Gays do not deny this, they deny that society should refuse them the same opportunities as other people.

sean s.

Posted by: sean samis | Dec 17, 2010 10:22:29 AM

I will at some point attempt to read "What Is Marriage" all the way through, but I skipped to the section on infertile couples and found the following: "To form a real marriage, a couple needs to establish and live out the kind of union that would be completed by, and be apt for, procreation and child‐rearing." Yet most states do not require a marriage to be consummated in order to be a legal marriage. Also while many states allow annulments to be sought if an incurable physical impairment of one of the spouses makes consummation impossible, from the few state laws I have checked, there is time limit. For example, in New York, after 5 years, an annulment may not be sought on the grounds that the marriage has not been, and can never be, consummated.

So it seems to me that marriage laws even as they stand do not conform to the definition of marriage as laid out in Robert George's paper.

As somewhat of an aside, and this is almost certainly not a coincidence, Robert George's definition of marriage strikes me as very similar to the Catholic concept of what constitutes "real" sexual intercourse. That is, sexual intercourse must be "open to the transmission of life" even when the transmission of life is impossible. Consequently, infertile couples must perform sexual intercourse as if they were fertile, just as they can only be validly married by doing the things fertile couples do, even though procreation cannot occur. In sex, and marriage, it is necessary to "go through the motions."

Posted by: David Nickol | Dec 17, 2010 10:52:39 AM

Yoshino makes no substantive arguments. All he says is George's arguments may hurt the feelings of some couples.

Posted by: Rob | Dec 17, 2010 10:54:58 AM

Joel Clark Gibbons says: "But the gays are attempting to deny that society teaches. That claim is entirely dishonest and incredible. They might as well deny that the sun rises in the East."

The gays???

Some of "the gays" actually oppose same-sex marriage, while many of "the straights" actually approve it. "The gays," just like "the blacks," or "the Jews," have within their ranks considerable diversity.

The sun does not rise in the east. In most geographic locations on the earth, it *appears* to rise in the east, but at the North Pole and the South Pole the sun does not even appear to rise in the east (since, among other things) there are no east and west at the poles), and from an orbiting space station, the sun does not appear to rise at all. Truth is often more complicated than some people make it out to be.

Posted by: David Nickol | Dec 17, 2010 11:07:58 AM

I didn't particularly like Yoshino's piece, and I sympathize with George et al.'s point that it doesn't really engage with the fundamental idea of their paper; it's more of an appeal to consequences, which isn't always a fallacy in ethics, but is generally dubious. But I'm disappointed in their reply, too. It seems a bit evasive: simply dismissing Yoshino's point with respect to infertile couples by saying that an analogy is not an equation is hardly a particularly good explanation of why we shouldn't evaluate a marriage, in part, by its success at pursuing the end around which it is structured.

Most worrisomely, however, they give no adequate reply on the parenting issue. Part B2 of the paper argues that different-sex couples, and different-sex couples *because they are different-sex* (and thus have "sexual complementarity"), have a special link to children, and suggests that the empirical evidence backs this up. But the empirical evidence they cite, as Yoshino points out, has nothing whatsoever to do with the child welfare impact of different-sex parenting as contrasted with same-sex parenting: it compares children raised by married, intact couples to children raised by cohabitating couples, single parents, and remarried parents. It's not even *suggestive* of the point they are making: it has nothing to do with it. All the actual studies of same-sex parenting, as George et al. presumably well know, report that children raised by same-sex parents do just as well as children raised by different-sex parents--a fact that ought to trouble anyone making the sort of argument they are making, but a fact that, nonetheless, they do not even bother to address, except by (in their reply and not in their original paper) vaguely casting aspersions at all the work that has been done on this topic.

Posted by: WJH | Dec 17, 2010 2:15:42 PM

Joel wrote “The single most essential function of society is to teach, starting with the tiny home society.” I cannot much disagree with this, but it raises a question I thought of just before my hard-drive died. Now that I have a loaner laptop I can ask: Just what is it that Joel is worried children will learn when same-sex marriage is legally recognized? Or what is he concerned they will not learn?

I plan to read all three papers tomorrow, I will not comment on them until I have done that.

Merry Christmas to all.

sean s.

Posted by: sean samis | Dec 17, 2010 5:00:08 PM

WJH wrote:

"All the actual studies of same-sex parenting, as George et al. presumably well know, report that children raised by same-sex parents do just as well as children raised by different-sex parents--a fact that ought to trouble anyone making the sort of argument they are making, but a fact that, nonetheless, they do not even bother to address, except by (in their reply and not in their original paper) vaguely casting aspersions at all the work that has been done on this topic."

It would be fairer to admit that the breadth of study is fairly narrow. Against the positions taken by the American Psychological Association and the American Academy of Pediatrics, traditionalists have claimed three methodological flwas. First, there have been few analyses of child development based on random, representative samples of same-sex parent households. Second, much of the literature to date has relied on a mother’s report of her parenting abilities, instead of employing more robust measures of child development outcomes. Third, most of the supportive ("do just as well") studies compare the outcomes of children raised by single lesbian mothers to that of children reared by single heterosexual mothers.

Posted by: Clement Ng | Dec 17, 2010 7:26:56 PM

More gay "marriage" posts? Marriage is between one man and one woman. Anything else is not a marriage. We can debate studies all we want, but that is sophistry. Even if there was conclusive evidence that children raised by homosexuals were harmed that would not stop them from lobbying for adoption rights. Once again I point out that it was political pressure, not scientific research, that changed homosexuality from a pathology into a protected class.

Posted by: Fr. J | Dec 18, 2010 7:41:14 PM

The infertility argument is cynical in the extreme. It is true that by encompassing infertile couples traditional marriage is slightly over inclusive insofar as its procreative purpose is concerned. But the over inclusion is slight and, more importantly, does not undercut or contradict the procreative purpose: no child is deprived of her natural parents because infertile couples are allowed to marry. SSM, by contrast, removes marriage's procreative essence and results in state encouragement of children being raised without one or both biological parents. It is a cruel argument to say that because some married heterosexuals cannot have children we must deprive other children of their natural parents.

Posted by: Dan | Dec 19, 2010 12:11:12 AM

Based on the established social science concerning the negative impact of fatherlessness on children, there is good reason to believe that homosexual unions are not good for parenting children. Even so, the relevance of the "social science" is dubious. Social science can not prove or disprove that a child yearns to love and be loved by her natural parents. This is so regardless of whether depriving a child of her parents results in depression or other measurable indications of harm. Also, what if the science shows that the children of homosexuals unions fare better than children of heterosexual marriages? Does that mean we should outlaw heterosexual marriage? If not, then why are we looking at social science at all?

Posted by: Dan | Dec 19, 2010 12:17:55 AM

Dan,

I fail to see the distinction between infertile heterosexual couples and same-sex couples when it comes to depriving children of their natural parents. Infertile heterosexual couples can adopt, in which case the child is raised by neither of its biological parents. When the man is infertile in a heterosexual couple, the woman can get pregnant by artificial insemination using sperm from a sperm bank.

I know same-sex couples who are well past the age when they would even dream of taking on a child. Why should considerations about who raises children prevent them from marrying? Same-sex couples who do adopt children do not deprive the children of the right to live with their biological parents. The biological parents don't want them or can't have them. That is why the children are available for adoption. It is somewhat of a cliche that same-sex couples often adopt special needs children who might very well go unadopted. It is difficult to see how adoptive parents are worse than no parents at all.

Lesbian couples can have children of their own, but that is no different from heterosexual couples with an infertile male using artificial insemination. Also, with 40% of children in the US now being born out of wedlock, I fail to see how a committed, loving lesbian couple having children of their own is a major concern.

Posted by: David Nickol | Dec 19, 2010 2:32:33 PM

David Nickol wrote:

"Infertile heterosexual couples can adopt, in which case the child is raised by neither of its biological parents. When the man is infertile in a heterosexual couple, the woman can get pregnant by artificial insemination using sperm from a sperm bank."

Only the second case is analogous to that of gay couples employing a surrogate mother or lesbian couples utilizing artificial insemination. When an infertile heterosexual couple adopts a child, they are not depriving him or her of the opportunity to be raised by biological parents. That child has already been given up for adoption by a biological mother or parents. By contrast, same-sex couples *and* heterosexual couples who opt for surrogacy or insemination are intentionally conceiving a child whose biological mother or biological father has no desire to be involved in that child's life. This *does* deny the child the possiblity of knowing either his biological mother or biological father.

"I know same-sex couples who are well past the age when they would even dream of taking on a child. Why should considerations about who raises children prevent them from marrying?"

Because marriage is not just about being with the one you love and, in any event, the reasons we have for socially privileging a relationship through the law are not necessarily the same as that of any particular couple who wants to marry (thus my fiancee and I want to marry each other because we are in love, but that reason alone is not a justification for legal regulation of married life).

On George, Anderson and Girgis' view, marriage is essentially oriented towards procreation and child-rearing, even when no children are born of any given heterosexual marital union. The conjugal acts of infertile and intentionally childless couples are still reproductive *in kind*. Despite their infertilty or intentional childlessness, such marriages continue to symbolize the unique and delicate bridging of the sex divide, a bridging on which children are properly nurtured and reared. The legalization of SSM weakens that bridge, by reinforcing the notion that children do not need to be raised, ideally, by their wedded biological parents. The fact that same-sex couple X has no plans to adopt, employ a surrogate or utilize artificial insemination does not change this.

"Also, with 40% of children in the US now being born out of wedlock, I fail to see how a committed, loving lesbian couple having children of their own is a major concern."

I believe you fail to see the concern because you are operating on the assumption that children simply need to be cared for by adults who love them. The traditionalists argue instead that maternal and paternal roles are not fully interchangeable and the efficacy of those roles is enhanced when mothers and fathers live together as a married couple. If lesbian couples having children through adoption of insemination is not seen as as concern, then that is because the absence of a father in those children's lives is not thought to be socially harmful. And this is what is in dispute.

Posted by: Clement Ng | Dec 20, 2010 2:00:10 AM

I am still slogging through the papers that triggered this thread, but I want to comment on the “procreative essence” or “purpose” of marriage which Dan mentioned. SSM does not remove or undermine this; the ancient recognition of childless marriages did that already (were Abraham and Sarah married or not before Isaac?).

There is also the absurd claim by Dan that SSM would “deprive other children of their natural parents.” SSM would not require or encourage stealing children from their parents to make them available to same-sex couples to adopt. PLEASE! Any child adopted by a same-sex couple has already lost their natural parents due to circumstances unrelated to same sex marriage.

sean s.

Posted by: sean samis | Dec 20, 2010 10:35:32 AM

Clement Ng,

I was addressing the following assertion made by Dan: "[N]o child is deprived of her natural parents because infertile couples are allowed to marry. SSM, by contrast, removes marriage's procreative essence and results in state encouragement of children being raised without one or both biological parents."

But no child is deprived of his or her natural parents because same-sex couples are allowed to marry. And Dan's argument works equally well against same-sex marriage and marriage of infertile couples. As you point out, the same options for having children are available to infertile couples and same-sex couples. Adoption by either homosexual or heterosexual couples dos not deprive a child of his or her natural parents, because the child has been given up for adoption. Aside from artificial insemination or IVF using the husband's own sperm, any reproductive technology used by heterosexual couples will have the same consequences as the same technology used by homosexual couples. A couple will be raising a child that is not the biological offspring of one or both them.

As for the same-sex marriages I mentioned in which the couples have no intention of raising children, Dan's complaint about "state encouragement of children being raised without one or both biological parent" does not apply to them.

My point is that the state is not encouraging homosexual couples to do anything it is not encouraging infertile heterosexual couples to do by allowing them to marry. Also, since it is not necessary to marry (or even to have a same-sex or opposite-sex partner) to adopt children, Dan really has no argument at all against same-sex marriage per se. He may have an argument against certain reproductive technologies, and he may have an argument against allowing singles or same-sex couples to adopt, but that is not an argument against same-sex marriage.

You say: "I believe you fail to see the concern because you are operating on the assumption that children simply need to be cared for by adults who love them."

That is pretty much my assumption (if you include stable relationships between the adults raising the children), but my point is that compared to the astonishing 40% rate of out-of-wedlock births (and the rate is 70% among African Americans), the concern about lesbians couples giving birth to their own children -- even if one considers it a problem -- is small by comparison.

Posted by: David Nickol | Dec 20, 2010 10:40:01 AM

We can see what happens when the family is broken. Out of wedlock children labor under heavy burdens. This proves my contention that when we weaken the normal family we as a society pay the price. We need to strengthen families not destroy the whole notion of family.

Posted by: Fr. J | Dec 20, 2010 3:49:26 PM

Fr. J,

You are correct of course, except that same-sex marriage will neither weaken the "normal family" nor "destroy the whole notion of family". There are many stressors on the American family; same-sex marriage is not one of them.

sean s.

Posted by: sean samis | Dec 20, 2010 4:45:12 PM

I thought this was an interesting excerpt from the Pope's annual address to the Curia:

On the subject of his meeting with the world of culture at Westminster Hall in London, the Pope noted how "Alexis de Tocqueville, in his day, observed that democracy in America had become possible and had worked because there existed a fundamental moral consensus which, transcending individual denominations, united everyone. Only if there is such a consensus on the essentials can constitutions and law function. This fundamental consensus derived from the Christian heritage is at risk wherever its place, the place of moral reasoning, is taken by purely instrumental rationality. ... In reality, this makes reason blind to what is essential. To resist this eclipse of reason and to preserve its capacity for seeing the essential, for seeing God and man, for seeing what is good and what is true, is the common interest that must unite all people of good will. The very future of the world is at stake".

Posted by: Fr. J | Dec 20, 2010 4:46:16 PM

Hi Sean and David.

Yes, Dan is mistaken in concluding that the legalization of SSM would open the door to a state of affairs that is not already made possible by surrogate motherhood and artificial insemination. Same-sex couples should not be refused the right to marry on these grounds alone. He would be right, however, in claiming that the recognition of SSM would *futher* encourage the idea that children can be permissibly deprived of their right to be raised by their biological parents.

(Of course, such a right implies that parents are *obligated* to raise their biological offspring, even if they do not care to discharge this duty).

I think Dan is endeavoring to answer the "infertility" and "intentionally childless" objection to the tradtionalists' argument, an objection that George, Anderson and Girgis themselves respond to. Why should we deny SSM couples the right to marry if we grant that right to infertile and intentionally childless couples? Well, if marriage is oriented towards procreation (i.e. marriage is a process that is naturally fulfilled by procreation, even if some heterosexual married couples cannot or will not procreate), then even the union of infertile and intentionally childless couples bear witness to the goodness of this conjunction. Their marriages still symbolize the sex complementarity that traditionalists believe should be protected, a complementarity that is projected at a general, societal level. They may be wrong in supposing that this is worth protecting, but they are not inconsistent. If children should be raised, ideally, by their biological parents, joined together in marriage, then the union of infertile and intentionally childless couples still reinforces this key notion.

Now David has claimed here several times that the rise in out-of-wedlock births should be of far greater concern to us. As is well known, many of these children are raised by their mother alone, having been abandoned by the father. Fatherlessness is already known to have negative social consequences for children in general (I would be glad to list the sociological studies, which control for the effects of parental income on child-wellbeing). This buttresses the tradionalists' claim that maternal and paternal roles are not fully interchangeable, that mothers and fathers make different but mutually necessary contributions to child raising. Of course, children raised by lesbian couples are without a father too. So what troubles you about the rise in out-of-wedlock births? Is it that these children are not being raised by both their mother and father, or is it that these children are not being raised by any two parents? (and why just two parents, for that matter?)

If we are convinced that conjugality and parenting can be de-coupled withotu significant social costs, then we would have to treat single-parenthood (by abandonment or by choice) and same-sex parenting as *related* phenomena.

Posted by: Clement Ng | Dec 20, 2010 5:49:46 PM

The great French jurist and author of the leading commentary on the Code Civil, le doyen Jean Carbonnier did raise the question: “What is the state’s interest in marriage? Why does marriage exist, as a legal institution? What is the unique legal rôle of marriage?”

Carbonnier's analysis had to address the differences between the two legal régimes of marriage on the one hand and civil unions (PACS) for same-sex and opposite-sex couples on the other (as well as unregulated cohabitation) and to extract a principle from them.

His conclusion: « le cœur du mariage, ce n'est pas le couple, c'est la présomption de paternité » [“The heart of marriage is not the couple, but the presumption of paternity.”] This is based on Article 312 of the Code Civil: « L'enfant conçu ou né pendant le mariage a pour père le mari.» (“The child conceived or born during the marriage has the husband for father”)

To summarise his conclusions: (1) Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation..

In other words, the institution of marriage entails consequences with respect to filiation that the other forms of union do not. Moreover, this leading jurist could find no other significant difference at all, in the laws governing cohabitation and civil unions on the one hand and marriage on the other, that does not logically derive from this presumption and no-one, to my knowledge, has been able to suggest an alternative reading of the legal texts themselves.

In 2005, Carbonnier’s views were cited with approval by the French Senate: “Preserving the presumption " is est pater quem nuptiae demonstrant ", adopted in all European legislation as Ms. Frédérique Granet-Lambrechts, professor at the Robert Schuman University of Strasbourg, told your reporter, Article 312 of Civil Code provides that a child conceived or born during the marriage has the husband for its father.

The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple's children. The report presenting the order to the President of the Republic rightly points out that " it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value."”

Posted by: Michael PS | Jan 5, 2011 6:30:20 AM

With all due respect to Dean Carbonnier, he’s just wrong about the dependence of marriage on the presumption of paternity.

Asking “why does it [marriage] exist” is not a relevant question; that is about history. The question vis-à-vis same-sex marriage is about possibility. Can different-sex and same-sex marriage co-exist without undermining each other? Yes, they can.

Likewise, asking about the “unique legal rôle of marriage” is not relevant unless it can be shown that marriage has only one role in society and law (it does not), and if same-sex marriage interferes with that or those roles. It does not.

If proponents of same-sex marriage in the US were to cite foreign laws and decisions as supporting arguments, I am quite sure that opponents would declare them irrelevant under the American legal system. Consequently, foreign laws and decisions are also irrelevant when cited in opposition to same-sex marriage in the US.

It may be that “institution of marriage entails consequences with respect to filiation that the other forms of union do not” but that does not matter unless same-sex marriage interferes with those consequences. It does not. This is not a zero-sum decision. Different-sex marriage can coexist alongside a closely parallel same-sex marriage. There are no cross-purposes.

Michael concludes that “The presumption of paternity ... is ... the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value.” I will not agree or disagree with this, but I will again note that same-sex marriage does not challenge the presumption of paternity; so it does not question or challenge the “heart of marriage”.

sean s.

Posted by: sean samis | Jan 6, 2011 6:01:59 PM

Sean

Why marriage exists as a legal institution, rather than a merely social arrangment is not to look at its history, but at its continuing relevance and, in particular, why two institutions, marriage and civil unions should exist alongside each other, if they perform identical legal funnctions,especially when many opposite-sex couples are now opting for civil unions

It was precisely my argument that marriage does, indeed, have only one unique legal function, that it does not share with civil unions. The importance of this function is clear enough. No-one will deny that the state has an interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and to the orderly succession to property. To date, no better, simpler, less intrusive means than marriage have been found for ensuring, as far as possible, that the legal, biological and social realities of paternity coincide.

Obviously, the presumption of filiation has no place in a SSM. As between two men, it cannot arise; as between two women, it would be invariably false in fact. Belgium and the Netherlands in allowing SSM recognised this and excluded the presumption, thus creating two different matrimonial régimes, one for same-sex and one for opposite-sex couples. How the former differ from civil unions, in all but name, I leave to others to explain.

The reason for treating same-sex and opposite-sex unions differntly is because their situations are not analagous. A separate terminology serves to clarify this distinction

Posted by: Michael PS | Jan 7, 2011 12:44:11 PM

Michael wrote that “many opposite-sex couples are now opting for civil unions”. In few places in the US do they have another option; so the evidence of this being a voluntary choice in the US is missing.

If filiation is the “one, unique legal function” of marriage (as Michael writes), then a childless "marriage" is not a marriage, it is something else, even if it is a different-sex union. Michael advocates a revisionist view. It's a valid perhaps but revisionist none-the-less. I do not share Michael's revisionist agenda.

Michael wrote “No-one will deny that the state has an interest in the filiation of children being clear, certain and incontestable.” True, but paternity tests provide this with even greater clarity and certainty. In any event, same-sex marriage will not affect this. Same-sex marriage does not weaken or interfere with identifying the paternity of a child.

Michael wrote “To date, no better, simpler, less intrusive means than marriage have been found for ensuring, as far as possible, that the legal, biological and social realities of paternity coincide.” Actually, paternity tests can do the same just as simply. In any event, same-sex marriage will not affect this. Same-sex marriage does not weaken or interfere with efforts to ensure the legal, biological and social realities of paternity.

Michael wrote “Obviously, the presumption of filiation has no place in a SSM.” Obviously this is true in any childless union regardless of the genders of the spouses.

Michael wrote “The reason for treating same-sex and opposite-sex unions differntly is because their situations are not analagous.” Wrong. Not only are they analogous, childless unions are equivalent regardless of the genders of the spouses. Adoptive unions are similarly equivalent. There is no logical reason for any legal distinction based on the spouses genders.

Michael wrote “A separate terminology serves to clarify this distinction [regarding paternity]” If this distinction had a purpose, if the law regarded ALL childless union as “something else” then Michael would have a valid point; but it does not. How Belgium and the Netherlands to sort this out for themselves is irrelevant here in the US. We have Constitutional mandate for Equal Protection under the law. If childless different-sex unions are considered “marriage” then same-sex unions cannot justly be relegated to some other terminology. Equal means equal.

sean s.

Posted by: sean samis | Jan 8, 2011 2:06:36 PM

Is it really the case, as Sean writes, that there are "few places in the US" where opposite-sex couples do not have the option of marriage?

To suggest that paternity testing is the equivalent of the presumption of paternity is to ignore the attendant difficulties. A universal system of testing at birth would be difficult to implement and, if paternity can be questioned at some later date would defeat the object of making filiation incontestible. Besides, whilst it is the object of the system to make the biological, legal and social realities of paternity coincide, it would privilege biology over the other two aspects - a not insignificant change in public policy

Filiation is relevant to all potentially fertile marriages and, in the case of opposite-sex couples, it is very difficult to determine in advance, i.e. at the time of celebration, whether there will be children or not.

To establish a screening process would be burdensome, expensive, intrusive and litigious, especially given possible advances in reproductive medicine and assisted reproduction. Laws are enacted for the general case and anomalies are the price that legislators pay for simplicity and certainty. The presumption that opposite-sex couples are potentially fertile and opposite-sex couples are not is a reasonable working compromise.

I suspect that there is a profound difference of philosophy, between those who view civil marriage as a "pillar of the Republic," to be valued for the public purposes it serves, rather than for the incidental benefits it confers on individuals and those who regard it as a means of access to certain personal advantages. Perhaps, this is the debate we should be having.

Posted by: Michael PS | Jan 9, 2011 5:52:02 AM

I should have written

"Laws are enacted for the general case and anomalies are the price that legislators pay for simplicity and certainty. The presumption that opposite-sex couples are potentially fertile and same-sex couples are not is a reasonable working compromise."

Posted by: Michael PS | Jan 9, 2011 5:55:44 AM

To suggest that paternity testing is the equivalent of the presumption of paternity is to ignore the attendant difficulties. A universal system of testing at birth would be difficult to implement and, if paternity can be questioned at some later date would defeat the object of making filiation incontestible. Besides, whilst it is the object of the presumption to make the biological, legal and social realities of paternity coincide, as far as possible, paternity testing would privilege biology over the other two aspects - a not insignificant change in public policy

Filiation is relevant to all potentially fertile marriages and, in the case of opposite-sex couples, it is very difficult to determine in advance, i.e. at the time of celebration, whether there will be children or not.

To establish a screening process would be burdensome, expensive, intrusive and litigious, especially given possible advances in reproductive medicine and assisted reproduction. Laws are enacted for the general case and anomalies are the price that legislators pay for simplicity and certainty. The presumption that opposite-sex couples are potentially fertile and same-sex couples are not is a reasonable working compromise.

I suspect that there is a profound difference of philosophy, between those who view civil marriage as a "pillar of the Republic," to be valued for the public purposes it serves, rather than for the incidental benefits it confers on individuals and those who regard it as a means of access to certain personal advantages. Perhaps, this is the debate we should be having.

Posted by: Michael PS | Jan 9, 2011 5:58:21 AM

Sean appears to have misread my earlier post: I said “many opposite-sex couples are now opting for civil unions,” not same-sex couples, to which his response obviously applies

To suggest that paternity testing is the equivalent of the presumption of paternity is to ignore the attendant difficulties. A universal system of testing at birth would be difficult to implement and, if paternity can be questioned at some later date would defeat the object of making filiation incontestible. Besides, whilst it is the object of the presumption to make the biological, legal and social realities of paternity coincide, as far as possible, paternity testing would privilege biology over the other two aspects - a not insignificant change in public policy

Filiation is relevant to all potentially fertile marriages and, in the case of opposite-sex couples, it is very difficult to determine in advance, i.e. at the time of celebration, whether there will be children or not.

To establish a screening process would be burdensome, expensive, intrusive and litigious, especially given possible advances in reproductive medicine and assisted reproduction. Laws are enacted for the general case and anomalies are the price that legislators pay for simplicity and certainty. The presumption that opposite-sex couples are potentially fertile and same-sex couples are not is a reasonable working compromise.

I suspect that there is a profound difference of philosophy, between those who view civil marriage as a "pillar of the Republic," to be valued for the public purposes it serves, rather than for the incidental benefits it confers on individuals and those who regard it as a means of access to certain personal advantages. If that is revisionism, so be it; I prefer to consider it a reasonable inference from the law we now have. Perhaps, this is the debate we should be having.

Posted by: Michael PS | Jan 9, 2011 6:02:18 AM

Michael;

You are correct, I did misread your comment about “opposite-sex couples”. My error. However, this does not justify forbidding for same-sex couples the same choices as different-sex couples. If different-sex couples get to choose marriage, same-sex couples have the same right.

In the US, only 5 States and the District of Columbia provide same-sex marriage. 3 other States recognize them if performed elsewhere. The remaining 42 States provide only for various civil unions or ban same-sex marriage completely. Google can find this for you.

Regarding the equivalence of “paternity testing” to “the presumption of paternity ”, the “presumption of paternity” is a legal standard used to determine whom to treat as the father barring evidence to the contrary. The “presumption of paternity” establishes legal responsibility. Paternity testing does exactly the same thing; it can even overcome the presumption if the actual father is other than the mother’s husband.

You wrote that “Filiation is relevant to all potentially fertile marriages and, in the case of opposite-sex couples, it is very difficult to determine in advance ... whether there will be children or not.” In fact that is true in any marriage; same-sex marriage is no different in this regard. One never knows.

You wrote that “The presumption that opposite-sex couples are potentially fertile and opposite-sex couples are not is a reasonable working compromise.” It is also a pointless presumption. Whether a particular couple is potentially fertile or not has never been relevant to whether they can marry, so the “compromise” serves no purpose. Your amendment of this point does not save it. The general case is that THE LAW DOES NOT CARE if the couple are “potentially fertile or not”.

Your several comments seemed to be fragmentary repetitions; if there were significant changes in later comments, I did not notice them.

Your closing comment on philosophical differences appears to presume that same-sex marriage has no public value or public purpose. Question: does a childless different-sex marriage have no public value or public purpose?

sean s.

Posted by: sean samis | Jan 9, 2011 11:14:05 AM

Sean asks "does a childless different-sex marriage have no public value or public purpose?"

None that differentiates it from a civil union. The law peculiar to marriage is concerned with the founding of a family and expresses the state's concern with the welfare of children through filiation to the husband.

The law appears to recognise this difference by giving very different statutory claims against the estate and rights of support by parents-in-law to a childless widow/er and one with surviving issue of the marriage. Similarly, the law gives statutory claims to the parents, brothers and sisters of the deceased in the former case, but not the latter

In other words, the law does differentiate between chidless marriages and those with children, at precidsely the point where it can be determined whether the marriage will be fertile or not, namely, on the death of one of the spouses.

Posted by: Michael PS | Jan 10, 2011 3:10:27 AM

Michael,

I don’t claim to know how the law treats childless marriages wherever you live, but here in the States; childless marriages are legally equal to marriages with children. Even the things you mention are not legal distinctions between marriages; but distinctions based on the presence or absence of properties or persons after the marriage has ended (due to death of a spouse). The law does not differentiate between these marriages, it differentiates between estates and survivors after the fact.

In any event, these considerations do not justify banning same-sex marriage; it is equivalent to a childless different-sex marriage and deserves the same treatment.

sean s.

Posted by: sean samis | Jan 10, 2011 12:33:45 PM

To summarise my argument: the public purpose of marriage is the founding of a family; in the interests of simplicity, certainty and universality - vital republican principles - the law deems all, and only, opposite-sex couples to be potentially fertile. It is the ordinary means of establishing the juridical bond of father and child - "Pater est is quae nuptiae demonstrant." All the other legal incidents peculiar to marriage flow from this principle. It enlists the couple in a parental alliance and affords the child an indivisible filiation. This special nature of marriage is the basis for the existence of rules governing its conditions, its effects and its dissolution.

Same-sex couples are, accordingly, not concerned with this institution.

Posted by: Michael PS | Jan 11, 2011 3:24:02 AM

Michael summarizes that “public purpose of marriage is the founding of a family”. I agree; and any two persons can be a family. Children are not required. Same-sex couples qualify.

Michael writes that “the law deems all, and only, opposite-sex couples to be potentially fertile”. This cannot be correct because CURRENTLY the law does not require potential fertility as a requirement to marry. If the law inaccurately deems an infertile couple “potentially fertile” then the cause of the actual infertility (being elderly, sterile, or a same-sex couple) is not relevant.

Michael writes that the marriage “is the ordinary means of establishing the juridical bond of father and child”. Among other things, it does this, yes. But there are other purposes to marriage, no father-child relationship is required even now, and same-sex marriage would not interfere with any of these purposes.

Michael writes that “All the other legal incidents peculiar to marriage flow from this principle [of marriage establishing paternity]” Obviously this cannot be true because paternity is not required for a marriage to have all “legal incidents peculiar to marriage”.

Michael writes that marriage “enlists the couple in a parental alliance and affords the child an indivisible filiation.” This applies only to some marriages because it applies only if there actually is a child. Marriages without children remain fully valid and legitimate. And even when there is paternity, filiation is-unfortunately-very divisible.

Michael writes that “This special nature of marriage is the basis for the existence of rules governing its conditions, its effects and its dissolution.” Cannot be true, again because no children are required for the application of the rules of marriage, no marriage is required for the application of the rules of paternity, and even when there are children, the marriage is as readily dissolved as when there are none. Whether this is good or bad is not relevant to the fact that it just is.

Michael concludes that “Same-sex couples are, accordingly, not concerned with this institution.” I believe it is for same-sex couples to decide what they are concerned with or not. Clearly many are concerned with it; they want to marry. Michael cannot cite a good reason to object.

sean s.

Posted by: sean samis | Jan 12, 2011 3:28:43 PM

Sean previously wrote: "You wrote that “The presumption that opposite-sex couples are potentially fertile and opposite-sex couples are not is a reasonable working compromise.” It is also a pointless presumption. Whether a particular couple is potentially fertile or not has never been relevant to whether they can marry, so the “compromise” serves no purpose. Your amendment of this point does not save it. The general case is that THE LAW DOES NOT CARE if the couple are “potentially fertile or not”."

But it does: that is why it excludes same-sex couples and the impotent. In all other cases, it treats all marriages as potentially fertile.

Posted by: Michael PS | Jan 13, 2011 3:10:31 AM

No, Michael, the law does not exclude the impotent from marriage. At least not in the US. Perhaps where you live the impotent are not allowed to marry, but here in the States, there is no such law. The law here excludes same-sex couples only out of irrational and purposeless deference to tradition.

sean s.

Posted by: sean samis | Jan 13, 2011 9:50:40 AM

Sean

You astonish me. Impotence is a ground of nullity throughout Europe; in some jurisdictions, mere non-consummation is considered sufficient evidence of impotence.

Posted by: Michael PS | Jan 14, 2011 11:25:53 AM

Michael, I’ll take your astonishment as a complement. I am no expert on European law so I will defer to your evaluation of it. In the States, impotence is not enquired into before a marriage is registered. Is it different in Europe? In the States, divorces are frequently granted for mere incompatibility, which could be due to impotence, non-consummation, or just bad cooking. But if neither spouse complains, celibacy is acceptable as part of a legally recognized marriage; impotence is no bar. At least in the States. We don’t like the idea of the State imposing itself in our marriages. Is it different in Europe?

sean s.

Posted by: sean samis | Jan 14, 2011 2:09:59 PM

Impotence is not enquired into before the marriage in Europe either, but, if existing at the time of the marriage, the marriage will be declard void, not dissolved, just like a bigamous or forced or under-age marriage.

This is very different to divorce, for the marriage is treated as never having existed.

Of course,unless one or other spouse comlains, it will not come to court but this is just a case of "Non deficit jus sed probatio."

Posted by: Michael PS | Jan 14, 2011 3:09:28 PM

Michael,

annulments are pretty much the same as divorce; something that was a marriage ceases to be. The law treats an annulled marriage AS IF it never existed, but is only a legal fiction. In reality the marriage did exist, and then it was ended. The practical consequences of this legal fiction are minimal. You cannot unring a bell.

If we are trying to resolve the actual nature of marriage, then a legal fiction is irrelevant; marriage is compatible with impotence; and all marriages are subject to legal termination. Whether they are voided or dissolved only matters to the relationship AFTER the marriage.

Impotence does not bar marriage, it merely gives a complaining spouse another ground for ending the marriage.

sean s.

Posted by: sean samis | Jan 14, 2011 4:51:53 PM

The distinction between a void marriage and one that is later dissolved not only reflects a conceptual different, but does have important practical consequences, both for the couple and third parties. Cases have occurred involving marriage as a resolutive condition to an interest, where property has been distributed following a de facto marriage, which subsequently proved to be void. Likewise, donations inter se or by third parties will be recoverable under the "conditio apposita et non verificata" rule. In Public Law, the differences are even more marked: the erasure of the entry from the public registers and the consequent loss of any citizenship or residency rights acquired through the marriage. Sometimes, different countries have jurisdiction over annulment and over dissolution of a particular marriage.

But these practical consequences are by-the-by; the underlying question is one of what marriage IS. The law regards consent, for example as of the essence of marriage, as is mental capacity and, similarly, puberty. Now, in Europe at least, potency is regarded in precisely the same way as these other impediments. It goes to capacity to marry, or at least to marry this particular person, for impotence may be relative, as in the case of invincible repugnance.

The Civil Code does not define marriage; its nature or legal function, is a matter of inference from the provisions regarding its formation and consequences and, here, impediments are instructive.

Note, too, that no similar impediment exists for civil unions and it might be difficult to frame its requirements, in the case of a same-sex couple. That it does not apply to civil unions of opposite-sex couples either suggests a conceptual difference between a marriage and a PACS; what that is, I have already argued at length.

Posted by: Michael PS | Jan 15, 2011 6:06:41 AM