Redefining Marriage

Marriage CertificateIt has become apparent to me over the past few days engaging with people on social media on the issue of same-sex marriage that the over-whelming majority of the proponents of the current moves to change the legal definition of marriage have absolutely no idea *why* they are asking for this change. What I mean by this is simple – it is not that the proponents do not believe that extending marriage is a good thing but rather that they do not understand *why* they believe extending marriage is a good thing.

To explain, let me begin again by defining what the law currently understands marriage to be.

Marriage is the voluntary, exclusive union of a man and a woman for life. As well as providing mutual support and comfort, marriage is understood to be a normatively procreative sexual union which has its physical expression of this underlying assumption in the act of coitus.

Now the first half of that paragraph is pretty well uncontentious. The second sentence is the one that always causes problems, but we need to recognise that English law at the moment understands this definition to be true and makes certain assumptions on the basis of that. For example, because marriage is assumed to be procreative, married husbands are automatically assumed to be the father of their wives’ children unless it can be proved otherwise. This means that married fathers can register the birth of their children whereas unmarried fathers cannot. The understanding of coitus also means that divorce proceedings can cite adultery as a reason for automatic divorce, since adultery is defined in law as the act of coitus with another person (and since coitus is the normal procreative biological process ). Other sexual infidelity that is not procreative is not automatic grounds for divorce and rather must be argued in court as unreasonable behaviour – not just the sexual act itself but also an argument as to why it was unreasonable.

Of course, at this point the normal complaints are raised. What about infertile couples? What about older couples? The problem with these complaints is that they focus on the wrong component of the definition of marriage. Although marriage is a normatively procreative union, not every act of coitus has to be procreative to validate a marriage. In an individual marriage not all sex will lead to procreation, but this doesn’t invalidate the marriage. In the same way some marriages will not procreate at all, but this does not make them invalid marriages because by the couple engaging in coitus they are pointing towards the underlying truth that coitus is the physical expression of the marital union that is normatively procreative. If a married couple engages in coitus, or has ever engaged in coitus, then it is a valid marriage for the purposes of pointing towards the procreative nature of the sexual union.

So on these presumptions (and they are presumptions to which we will return later) we can see why other relationships cannot be understood to be marriage. Firstly, same-sex unions cannot be marriages under this definition because they are structurally sterile. The sexual union of two people of the same-sex can never procreate. Indeed, two people of the same-sex cannot together engage in the act of coitus because they either have two penises or two vaginas and the act of coitus is defined (in case law) as the penetration of an erect penis into a vagina. Of course, just because same-sex unions cannot be marriages does not mean that society shouldn’t recognise them, and so we have Civil Partnerships in the UK which confer upon partners the same legal rights as marriage (bar some anomalies around pension law which can be easily rectified by amending the Civil Partnership Act) and the State can treat them in the same way as marriages for the purpose of tax law (though at the moment the UK government seems loathe to give tax breaks to married couples / civil partners). And of course, those people who are homosexual (for the vast majority of those who enter civil partnerships are homosexual) are not barred from being married as they can choose to marry someone of the opposite sex (as indeed this author has done), but then that marriage is understood to be a normatively procreative union in the way that a civil partnership is not.

The second kind of relationship that is excluded from marriage is a familial relationship (so siblings, parent/child or other close family relationships). The reason why these relationships are excluded is because of the procreative understanding of marriage and the knowledge that children procreated in such close family relationships are far more likely to have issues around their genetic composition. It’s interesting at this point to recognise that this exclusion of close family relationships from marriage is based on the presumption that marriage is a procreative union. The genetic issues around close family members procreating are only an issue *if* their relationship is sexual and potentially procreative.

Third, polygamous relationships are excluded from marriage because they break down the procreative union by including in the marriage someone who is not the biological sire of a child that is the product of the marriage. A polygamous union of three people breaks down the structural sexual union of one man and one woman in procreation. It raises a number of complications in the understanding of legal parenthood. Once again, the argument against polygamy being recognised as marriage is based in the understanding of marriage as a procreative union.

These arguments are laid out in much greater detail in the George et al paper that was published two and a half years ago and I recommend that you take a good long moment to read that before continuing.

Now, at this point it is worth a moment of honesty. The argument for a particular type of marriage I present above is based upon an arbitrary assumption that this is the kind of relationship that as a society we want to support. George et al go into greater detail as to why the State might want to support it, but the fundamental core of the reasoning is that such relationships help provide a stable basis for the procreating and raising of the next generation of citizens/subjects. All the research on raising children indicates that children achieve on average the best educational and emotional outcomes if they are born into a marriage and the parents of that marriage stay married through their childhood. It is therefore in the interests of the wider society to support such marital relationships as they benefit the society in which they exist.

But, as we have just mentioned, there are presumptions around procreation and these can be challenged. Why should marriage be a procreative union? Why should it be limited to just one man and one woman?

To explore these challenges, let’s examine a number of arguments that can be made to support the widening of the definition of marriage to same-sex couples. There are three main lines of reasoning and we will examine each one in turn.

The first line of reasoning is this – Because I demand it. We should allow same-sex couples to marry because they want to and for not other reason. It should be obvious to everyone that this cannot be a valid reason. Simply because someone demands that the law recognises them is not a good enough reason. Should we recognise sibling marriages or polygamous marriages simply because someone demands that we do? The answer is obviously no, and equally we reject the notion that we should accept same-sex marriage simply because it is demanded.

The second line of reasoning is this – Because we should have equal rights. Of course, we want to at this point to ask, what equal rights? The first answer is to have all the legal benefits of marriage for recognised same-sex unions, but this can be covered by Civil Partnerships (as we discussed above) which provide all the same rights that marriage do (bar some issues around pension rights as mentioned before). Since this is not what is being asked for we have to have some other meaning of “rights” and that appears to be the right to call my relationship a marriage and to have it recognised by others as such.

So our third line of reasoning is this – Because our same-sex relationships should be viewed as exactly the same as other-sex relationships. Now this is a much more subtle argument but it raises a number of questions and has a number of consequences which cannot be disregarded. When the argument is made to view same-sex unions in the same way as marriages, by definition to view something in the same way must mean that they are equal. You cannot say “My relationship is exactly the same as yours” if you implicitly recognise that in reality your relationship is different. For marriage to be “equal” it must treat same-sex and other-sex couples in exactly the same manner or else marriage is not by definition “equal”. For example, if other-sex marriages were allowed to declare vows at the solemnization, but same-sex marriages weren’t, would this be equal? Indeed, this is one of the current differences between marriages and civil partnerships.

Of course, if we demand equal definition and treatment then we immediately run into a problem with our current definition of marriage as outlined above. The definition is,

Marriage is the voluntary, exclusive union of a man and a woman for life. As well as providing mutual support and comfort, marriage is understood to be a normatively procreative sexual union which has its physical expression of this underlying assumption in the act of coitus.

The problem is obvious. Since a same-sex couple is structurally incapable of procreating, the definition of marriage has to change in order to accommodate same-sex couples. Perhaps the definition should change to the following,

Marriage is the voluntary, exclusive union of two people for life, providing mutual support and comfort.

The way that we make the definition of marriage fit both other-sex and same-sex couples is to remove any reference to procreation. This allows a definition that is no longer interested in what the outcome of sex between the couple is and in that way can cover all the variations proposed (man/woman, man/man, woman/woman). And it’s obvious why you should remove references to procreation, because as soon as you have one you recognise in law a structural difference between same-sex and other-sex unions. This is why you can’t have your definition of marriage to assume at the same time that an other-sex union is normatively procreative and that a same-sex union isn’t – that’s not an equal definition and as soon as you concede this difference in law you undermine your grounds for equal marriage on the basis that the relationships (other sex and same sex) are the same because you have explicitly declared them in law to be different.

And there is nothing wrong with doing this. If our original definition of marriage was based upon some presumptions that it should be a union grounded in the procreative act and symbolised by coitus (even if every single marriage is not procreative), why can we not change those presumptions? Why not indeed? Ultimately if marriage is the State’s to define then the state can make presumptions as to what should or shouldn’t constitute marriage. From those presumptions (at the moment in law that it is a procreative union) we can derive some exclusions (incest, polygamy, same-sex unions) that are based in the presumptions. Change the underlying presumption behind marriage, change the exclusions. Nothing could be simpler.

If you’re an advocate of equal marriage, I expect that to this point you will be in broad agreement. If the state has defined marriage based on presumptions, it has the right to change those presumptions. So far so good, but now assuming we have equal marriage and that we have removed from our underlying presumption of marriage the necessity for normative procreation, let us see how we now handle other relationships’ claim for marriage.

Let’s begin with consensual incest. Though it is unpleasant for some to accept, the fact remains that some family members have consensual, loving, “permanent, faithful, stable” sexual relationships with other family members. At the moment these relationships are forbidden in law from being solemnized as marriages, chiefly because of the understanding that such sexual relationships produce procreative challenges in the genetic makeup of the children. There is no other good reason for such marriages to be forbidden – one might claim that there are particular emotional dynamics that mean that the “love” in such relationships is not genuine love, but that rather begs the question as to whether one is able to judge the love of another couple. Indeed, some conservatives try to claim that same-sex relationships are not true love because homosexuality is a product of emotional defects in the gay individuals, but this is a patronising and offensive position. And if it is a patronising and offensive position when applied to gay relationships, why is it not a patronising and offensive position when applied to consensual incest?

No, this argument against incest won’t do. Perhaps under equal marriage we can turn to the procreative argument against such relationships, that consensual incest has dangers for the offspring of such unions. But here we run into two difficulties. First, we now seem to be arguing two contradictory things in our basis for defining marriage. With one breath we are declaring (by permitting same-sex couples to marry) that the assumption that marriage is a procreative union should be erased from our definition of marriage. With another breath however we are making a judgement of the validity of a relationship to be granted the status of marriage on the basis that it is procreative. By banning incestuous couples from marrying we are saying that the fact that a relationship is procreative is vital to deciding whether it should or shouldn’t be allowed the benefits of marriage, but by permitting same-sex couples to marry we are saying that the ability to procreate (or not) should not be a factor in determining whether a couple can marry. Indeed, if marriage should not be about procreation and specific sex lives, why can we deny a couple the right to marry because of their specific sex life? Incestuous sex is currently illegal in England and Wales under the Sexual Offences Act 2003, but if we change the presumptions behind marriage to erase the understanding of procreation to be important for such relationships, why should the law assume a couple are having sex or a particular kind of sex? Put it another way – if the law on incest is about recognising that the State has an interest in the procreative lives of its citizens, why should it be offensive that that State promotes a particular kind of procreative union (other-sex marriage) as a particular relationship different to other sexual unions?

Secondly, even if we say that marriages should not be permitted for those couples who have a capacity to produce genetically challenged offspring, that argument cannot be used to deny same-sex incestuous couples marriage, since they have absolutely no possibility whatsoever of producing offspring. Indeed, the whole basis for banning same-sex consensual incest seems to be bound up with a “yuck” factor mentality and such a position is simply not a credible basis for making law.

What about polygamy? If our definition of marriage that it is “the union of two people” is a presumption we make as a society, why should it not be three people? The traditional legal argument against polygamy is that it undermines the parental procreative union of one man and one woman, but under equal marriage we have rejected the notion that ability to procreate or to symbolise procreation (in the act of coitus) should have anything to do with marriage. What then is our objection against three people marrying each other? We might argue about abuses of power or the like, but these are stereotypes that are not valid in all cases, and we have already rejected the banning of same-sex marriage on the basis of similar stereotypes.

We are left with the uncomfortable recognition that we do not want polygamous marriages not on the basis of any fundamental structural issue with polygamy but rather simply because we disapprove. And that’s OK. It is perfectly fine for society to say it prefers some relationships over others. But this leaves us with what appears to be a curious quandary – we have rejected polygamy (and incest) entirely on the grounds that we as a society do not wish to privilege such relationships with the title of “marriage”, but we have introduced same-sex marriage on the basis that is wrong for society to not privilege same-sex relationships simply because we choose not to. And once again, there is no problem with this. Society can pick and choose what it does or doesn’t want to call a marriage. Unfortunately though, it does leave us in the position where we have made to all intents and purposes an arbitrary decision to exclude some relationships just because we do not approve of the “love” that is exhibited in such relationships.

And this is a curious position to be in, because we seem to be arguing contradictory things. On the one hand we say it is not valid to restrict marriage from some couples (same-sex) because we think their love is not worthy of being given the status of other-sex marriages but then on the other hand we say that we want to restrict other people’s relationships (consensual incest, polygamy) from being given the privilege of marriage because we don’t think their love is valid. Should we judge people’s love or shouldn’t we? On the one hand we say it is not valid to restrict marriage from some couples (same-sex) on the basis that marriage should be about procreation as well as love, on the other hand we say that we want to restrict other people’s relationships (consensual incest, polygamy) from being given the privilege of marriage because we are concerned about the results of their procreation. Should marriage be concerned with procreation or shouldn’t it?

Oh what a tangled web we weave
When first we get rid of the presumption we conceive

Do you see the point? Whilst it is perfectly acceptable for the State to make a decision as to whether to restrict marriage to certain relationships, once you remove the presumption that marriage is a normatively procreative union you begin to remove the good reasons (which are based in the notion that marriage is a normatively procreative union) for excluding other relationships from the benefits of marriage. What we end up with is ultimately a societal prejudice to privilege certain relationships above others, but if we concede that point we then have to go back to the beginning and ask why, if it is acceptable for society to privilege certain relationships above others simple because of preference, it is wrong to exclude same-sex couples from marriage? That marriage should be a relationship based around normative procreation is no less a presumption then that marriage should be simply about recognising formally specific (sexual) unions that the State approves of and excluding others that it does not.

And that is the question that none of the people I am engaging with will answer. If marriage is not about normative procreation, what is it about? If it is about simply the two people who want to marry and not the normative procreative fruit of their marriage, why the restrictions based on procreation and why the limit to just two people? It just seems so arbitrary, so why can’t the advocates of same-sex equal marriage accept that it is arbitrary?

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