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Is Marriage for Childbearing?
originally posted: July 8, 2004
Summary: Some opponents of gay marriage claim that the purpose of marriage is child bearing, and it is therefore inappropriate for same-sex couples. We point out three major flaws in this argument: (1) there is no evidence to be found in the law that that is the purpose of marriage, (2) there are already many infertile married couples, and (3) same-sex couple frequently do have children.
IntroductionOne of the more common justificiations for denying gay marriage goes something like this:
The the purpose of marriage is to create a legal context for childbearing. Since same-sex couples cannot have children, it makes no sense to allow them to get married.
For this argument to convince us, we must be willing to accept not only that childbearing is one of the purposes of marriage (as it certainly is), but that it has no other significant purposes. That's a pretty wild claim. Even if we believed it, we'd have to confront the fact that same-sex couples frequently do have children. And even if we managed to convince ourselves that same-sex marriage is purposeless, we'd still be far short of proving that they were harmful and should thus be illegal. Unpromising though this argument is, people seem to seriously putting it forth as an argument against gay marriage, so let's examine it in detail.
People do not get married solely to have children
Even if you've never been married, you've probably at least considered whether you'd like to be married to some specific person. When you were thinking about whether you'd like to be married to that person, was the main thing that you were thinking about how good a parent they would be for your children?
If it was, I think you are in a small minority. For most of us, what we look for first is attraction. That frequently starts with sexual attraction, but most of us don't get married on the basis of sexual attraction alone. If we don't feel like this is a person that we can live with every day, whom we can share with, whom we can trust and depend on, whom we have common values with, then probably this is not someone we'd want to get married to after all.
Sure, if you are considering marriage you will almost certainly want to consider the question of children. You'll want to find out if you both want to have children, and if your ideas on parenting are fairly compatible. If you find out that your intended does not want to have children or cannot have children, and if you really do want children, you might call the whole thing off, though probably with tears in your eyes. Or you might not. You might decide that you love this person enough that being with them is worth losing your chance at having children.
So yes, certainly one of the reasons that people get married is to find a person that they can have and raise children with. But it not the only reason. For most people, it isn't even the most important reason. A marriage is something that exists between the two people married. Children are nice, but not necessarily the main point.
Marriages without children are common
Lots of people who cannot have children, or do not intend to have children, get married. Senior citizens marry. People with terminal illnesses marry. Infertile people marry. People who don't want children marry. Nobody ever seemed to mind until now.
Some of the opponents of gay marriage, like Peter Sprigg are prepared to declare that if childless hetrosexual marriages aren't exactly evil, then at least they are less important to society than marriages with children. He points out that actually preventing infertile couples from marrying would require invading their privacy or drawing arbitrary boundaries. Apparantly, he thinks banning marriage for seniors would be a good thing, and all that is stopping us from doing it is that setting any particular age limit would be arbitrary. Apparantly setting a gender limit isn't arbitrary. Incidentally, wouldn't that mean we can't have a minimum age for marriage either?
Childless hetrosexual couples will be pleased to hear that Mr Sprigg isn't merely willing to tolerate them. He is willing to grant that they aren't completely useless. At least those poor childless marriages reinforce the social norms by mimicing the structure of a real marriage. This works for married seniors, but not married gays, because senior's marriages are the of the same type as a real marriage. How did we decide how similar two marriages have to be before they can count as being the same "type"? Arbitrarily, of course.
And you never know, if you don't want a child, contraceptives might fail and you might become a real married couple against your will. If you are infertile, God might intervene and send you a child anyway (well, maybe not if your ovaries have been removed). So the possiblity of an accident or a miracle means your Pinocchio marriage may yet be visited by the Blue Fairy.
If it isn't yet obvious how muddled-headed this all is, Peter Spring, in his headlong eagerness to reduce all marriage to childbearing, childbearing, and nothing but childbearing, goes on to say "the fact that a child cannot reproduce [...is] among the reasons why people are banned from marrying a child." But thirteen-year-olds frequently can reproduce. The reason they may not marry is that they are presumed not to have the maturity and independence of judgement necessary to make such a commitment in a fully free and informed manner, and the immaturity of their reproductive equipment has nothing to do with it. How deep does your head have to be in the sand not to understand this?
Existing law does not connect marriage and childbearing
If the opponents of gay marriage are going to try to convince a court to ban it by claiming that childbearing is the essential purpose of marriage, they'll have to find some legal precident for that claim. Well, they're going to have a heck of a job finding any.
Though I'm not a lawyer, the legal relationship between marriage and childbearing is a subject I've been careful to research. You see, my partner (opposite-sexed, as it happens) and I have two children that we raise and care for together, but we've never gotten married. Before we decided to have kids, I went to some trouble to make sure that I'd have full parental rights even though I wasn't married to the mother of my children. I found that basically I had to do two things. First, I should have a will. In some states, children of a unmarried father may have difficulty inheriting if he dies without a will. Second, I should file papers formally asserting my paternity. If I was married to their mother, my status as father would pretty much be assumed. Even without marriage, a formal document probably isn't really necessary - the fact that I've been supporting them and caring for them as a father makes me the father as far as the law is concerned. A father is as a father does.
Aside from that, pretty much nothing is required. None of the legal rights or responsibilities of parents and children depend at all on whether or not the parents are married. The Uniform Parentage Act of 1973, upon which many state's parenting laws are based, was carefully and deliberately written to ensure this.
In retrospect, I do recommend getting married before you have kids. Planning a wedding is a lot of work, and it's hard to find time to do it when you've got kids to take care of. If I lived in a state with "common law marriage" this wouldn't be a problem. In those states the laws say that if a couple lives together as man and wife for a while, then they are to be legally considered to be married, without an ceremony or license being required.
Notice, however, that while living together can get you automatically married in some states, having a kid together definately does not. That's because, legally marriage is a relationship between two people that has no necessary connection with child-bearing.
On another page, I've compiled a fairly careful list of the legal consequences of marriage. A quick look down the list shows that nearly all of it is about the sharing of property between the members of the couple. If we marry, then what's yours is mine, and what's mine is yours. The sharing of property between a married couple is far greater than in any other relationship. For example, you can give gifts to your spouse without paying gift tax, but the limits on tax-free gifts to your children are the same as the limits on tax-free gifts to total strangers.
You'll find only a few items on that list that relate to parenting, and they are just defaults that happen if other arrangements aren't specified. A husband is assumed to be the father if no paternity papers are filed. A wife's children can inherit if no will exists. Pretty inconsequential.
In some states, only married couples can adopt children. But that says marriage is required to be a parent, not that parenting is required to be married. And that requirement has been steadily fading away for decades, being dropped by state after state.
Another thing you can look at is divorce law. The most common legal grounds for divorce is "irretrievable breakdown of marriage relationships". Some states have long lists of possible grounds for divorce, including abuse, adultry, abandonment, drunkeness, and insanity. A few states include impotence (a carry over from annulment law). So far as I can tell, no state accepts infertility as legal ground for divorce and no state ever has, which seems very strange if the purpose of marriage is childbearing.
Of course, if one partner wants children and the other doesn't, then that might lead to an irretrievable breakdown of marriage relationships. But so might a consistant failure to flip down the toilet seat after peeing.
One place where the law does recognize some connection between childbearing and marriage is in legal restrictions on who may marry whom. You cannot marry your brother or sister. In many states you cannot marry your first cousin. I believe these laws exist largely because there are increased risks of genetic disorders in children of close relatives. But these laws are different in character to laws against gay unions. They prevent people who should not have children from marrying, not people who cannot have children. Making this even more clear, Arizona does allow first cousins to marry if they are 65 or older or can otherwise prove that they cannot reproduce. Here we see marriages being allowed explicitly because they are very unlikely to produce children. This would make no sense if the law considered procreation to be the sole purpose of marriage, and not just one of many possible purposes.
There are lots of laws about parenting, just as there are lots of laws about marriage. But they're almost completely separate laws. If the purpose of marriage is childbearing, then for the most part, nobody seems to have told our lawmakers.
Same sex couples do have children
When the US Census Bureau counted households with unmarried same-sex partners in the year 2000, they found that 34% of the female-female households and 22% of the male-male households contained one or more children. For comparison, 46% of married opposite sex couples and 43% of unmarried opposite sex couples have children, so while opposite-sexed couples are more likely to be raising children than same-sexed couples, the difference isn't as large as one might think.
These statistics aren't exactly about gay couples. The census didn't ask people if they were gay. These are just the numbers of households containing children and same-sex adults. Sometimes people raising children together in the same house are just friends. But there are two children in my daughter's day care class who each have two mommies. Whatever the real statistics are, we know from personal experience that it is not unusual for gay couples to have children.
Of course, the children are not the biological offspring of the parents. However, we don't consider hetrosexual parents who legally adopt children or who conceive children using sperm from a sperm bank to be less worthy as parents. A parent is as a parent does.
And anyway, the day is not far away when two women can have a daughter together using a procedure not too much more unnatural than the way many opposite-sex couples with fertility problems now have babies. When this happens will opponents of gay marriage suddenly admit that it is OK after all because they can have children now? I doubt it. I don't think even the people putting forth this argument really believe that ability to have a child is what legitimizes a marriage.
In conclusion, the idea that marriage exists exclusively or primarily to promote childrearing is just something someone made up to throw in the face of advocates of gay marriage. There is no evidence for it anywhere. It is in contradiction to the law, and to daily practices.
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