Addressing Procreativity
Yesterday, in his continued offensive against traditional marriage, Dale Carpenter cleverly moves the procreation argument away from its intended mooring. Let me explain.
Carpenter argues that if procreation is the only reason why marriage should be restricted to the conjugal relationship of one man and one woman, then gays are not prohibited from marriage because some married couples are sterile, some choose not to have children, and some marry later on in life without the ability to father or mother children. However, procreation is not the only reason why marriage should remain heterosexual but it is the main reason.
For example, would a business continue to invest its resources (financial, human, material) to a project or product if there was no benefit to the company? Of course not, unless the business’s goal was to declare bankruptcy. Similarly, why would a Nation which needs to sustain its population and familial culture protect and provide benefits to a relationship where there can be no reciprocation? In other words, how can a Nation who wants to survive indefinitely support gay marriage when no sustainable offspring can come from their union?
Carpenter, like most if not all same-sex marriage supporters, blur and confuse society’s interest in marriage with individual interests in marriage:
Culturally, . . . [a] procreation-only view of marriage is even more questionable. Even couples who have children do not view their marriage as being only or even primarily about procreation. Their marriages are about children, yes, but also love, religious faith, commitment, and caretaking. For those couples who can’t or won’t have children, their marriages are obviously also not justified by procreation.
It is not the couple’s interest in procreating (and definitely not their love or level of commitment) that justifies state support of marriage. Rather, it is the state’s interest in a procreative couple–and the optimal, unique environment that a male/female coupling provide–that controls. As such, the marriages of infertile couples or couples who could procreate but choose not to are justified by procreation. Infertile couples are justified because when they took their vows, they intended raise children which aligns perfectly with the state’s interest in protecting procreative couples. Furthermore, the more selfish, childless couples who choose not to have children are infertile by choice–not by genetic or other circumstances beyond their control. The state’s interest in marriage–a union with independent procreative potential–is still achieved. The individualistic interests of that couple occur after the fact.
One final retort: Carpenter more than once has fawned that 49 states permit gay adoption (except Florida). That might be useful for his argument–if it were true. Here’s Utah’s adoption law which does not permit same-sex couples to adopt:
78-30-1. Who may adopt — Adoption of minor — Adoption of adult.
(1) Any minor child may be adopted by an adult person, in accordance with the provisions and requirements of this section and this chapter.
(2) Any adult may be adopted by another adult. However, all provisions of this chapter apply to the adoption of an adult just as though the person being adopted were a minor, except that consent of the parents of an adult person being adopted is not required.
(3) (a) A child may be adopted by:
(i) adults who are legally married to each other in accordance with the laws of this state, including adoption by a stepparent; or
(ii) any single adult, except as provided in Subsection (3)(b).
(b) A child may not be adopted by a person who is cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state. For purposes of this Subsection (3)(b), “cohabiting” means residing with another person and being involved in a sexual relationship with that person.
Oops.
November 5th, 2005 at 3:03 pm
Utah’s law does not forbid adoptions by homosexuals. Single homosexuals, like single heterosexuals, may adopt. Cohabiting homosexual couples, like cohabiting heterosexual couples, may not adopt. Florida is the only state that categorically prohibits adoptions by all homosexual persons, single or coupled. Thus, 49 of the 50 states permit adoptions by homosexuals.
November 5th, 2005 at 10:10 pm
Professor Carpenter
I agree that Utah law allows for a single gay or lesbian to adopt children. However, doesn’t the fact that in many states gay couples cannot adopt weaken your gradualistic argument that society is slowly but surely opening up to gay marriage?
November 7th, 2005 at 10:54 am
It’s a good question. There was a time not long ago, when unmarried partners could not both adopt a child. That began changing in the 1980s and 90s. Today, the trend in the states is toward allowing “second-parent” adoptions, which permit an unmarried partner (including a same-sex partner) to adopt the child of her or his partner so that now both are legal parents. The practice varies in the states, since most state statutes are vague on this point. But we are approaching 50% of the states in which some jurisdictions permit it. So the gradualist process I noted is at work in this area, too.
November 7th, 2005 at 5:18 pm
Professor Carpenter
Gradualism in Gay Adoption
The trend you describe in the adoption law seizes upon unintended vagaries in order to promote same-sex adoption. Thus, it is the absence of language prohibiting same-sex adoption rather than language explicitly endorsing same-sex adoption that carries the day. The legal trend would be more compelling, in my view, if explicit recognition rather than judicially-created definitions like “second-parent” adoption were the norm. I would argue that this covert method of allowing gay adoption exists because most jurisdictions in most states would disallow gay adoption in a public referendum.
Gradualism in SSM
In our Nation’s citizenry, we’ve seen in the last couple of years (and will see again tomorrow in Texas), a majority (in most cases a super-majority) of Americans in 17 States have voted to preserve marriage between one man and one woman. In addition, many other States have passed laws strengthening their statutory protection for traditional marriage. These recent actions by the citizenry and their representatives suggest that as a Nation, we are moving away from gay marriage and toward protecting traditional marriage instead of gradually toward same-sex marriage.