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February 19, 2004

One Thing Leads to Another

Well, just as I was about to wrap up the blogging for today, I noticed an interesting exchange between Eve Tushnet and Barry Deutsch on the Marriage Debate blog (scroll up from here). Deutsch writes, back on his own blog, in the context of couples' varying sacrifices for the benefit of society, and I don't want to jump into the middle of the debate in that context, so I'll stick to a matter that runs through the middle of it.

Although he tries to cover it up with a reference to discrimination, the very first commenter to Deutsch's post brings up a useful analogue: public schools, which even childless folks are deprived of income to support. The benefit to society of public schools isn't, strictly speaking, the increased knowledge of a particular child. Timmy could, after all, move to Mongolia and live like a king, to no benefit whatsoever to the people back in Duluth. The benefit to society is an educated citizenry, and that derives from the general prioritization of education.

Just so, the relevant (the central) benefit of marital law is to ensure that as many children as possible are born into and raised within marital relationships. It's an on-average thing, of course, and people will rightly make different judgments for their own lives. Put succinctly, the benefit to society is that childbearing and parenthood be culturally linked with marriage. This provides some of the perspective that I think Deutsch misses. It isn't one couple's sacrifice for the benefit of another couple's children; it's a small minority of couples' sacrifice for American children's benefit as a whole (and gay parents are an even smaller minority).

Deutsch makes an interesting comment that highlights the reason this benefit must derive from a general cultural understanding rather than an explicit rule:

She talks about "men who father children when they wish they hadn't" - a reference, I think, to forcing noncustodial fathers to pay child support (among other policies). I agree with that - but noncustodial mothers should also be forced to pay child support. And if child support laws protected the children of straight fathers, but not the children of gay fathers, that would be disgusting.

The obvious question is: how did those gay fathers come to have children? Straight men can father children by accident, which is part of why we encourage straight couples to marry even when they have no intention of becoming parents. Infertile straight couples, on the other hand, don't know that they can't have children until they're already trying, and only about 1% of couples prove, ultimately, to be sterile. But even sterility can't be made a bar to marriage because the level of intrusiveness to check would act as a disincentive to marriage.

In contrast, homosexual couples that have children have had to make a deliberate effort to become parents. Society can be confident, in other words, that the small percentage of homosexuals who are parents have already bought into at least some of the culture of parenthood. This also indicates a truth that gets lost in all of the fighting over civil marriage: homosexuals aren't prevented from forming whatever relationships they like and calling them whatever they like. To the extent that they are barred from marriage, as society defines it, it is a function of their biology, not of legal whim.

This is why it's ludicrous for Deutsch to posit a world in which it would be possible for "a social scientist put together reams of evidence proving that it doesn't benefit society when Jews get married." Religious and ethnic distinctions are of an entirely different type than distinctions by orientation. More importantly, the central distinctions of marriage have everything to do, in definition and in practice, with the way in which homosexuals differ from heterosexuals.

I just want to clarify that I've left aside all of Deutsch's assumptions and the various offshoot disputes that arise out of this complicated debate that aren't immediately relevant to the specific point that I wanted to make. On the matter of gay parenting, for example, there are discussions that must be had (elsewhere and eventually) regarding such things as the ethics and social complications of artificial conception methods, as well as the sociological debate with respect to adoption. In essence, I've assumed the best all around.

Posted by Justin Katz at February 19, 2004 6:34 PM
Marriage & Family