Thursday, October 26, 2006

Government's compelling interest in marriage.

In an article called "A Message from Rabbi Tilsen -- Same-Sex Marriage", Rabbi Tilsen argues for government to stop recognizing marriage altogether, and instead recognize what he would call "Civil Partnerships":


Connecticut law requires that any “religious” marriage be recorded with the State (General Statutes, Ch. 815e, Sec. 46b-22). This makes a religious marriage subject to the laws of the State, but does not make a State marriage subject to the laws of any religion. Is this requirement for the benefit of the State, or for the benefit of the couple? What is the State's interest?

A Christian or other religious marriage has a set of rules, customs and expectations that defines and governs the marriage, and that goes beyond the civil definition of marriage. Religious marriages are distinct from the civil Las Vegas marriage, which can be licensed, recorded and terminated within a span of days. While the government may recognize all of these as “marriages,” they are not quite the same.

Why should the state recognize any marriage? Our answer to this question determines our position on same-sex marriage. The state's reason cannot be to help the religious communities enforce their doctrines or value systems. If the state recognizes any marriage, it must have a purpose that helps the broad public without infringing on our liberties or harming a segment of our population.

As far as I can see, the state finds it advantageous to have a conventional set of rules for taxation, inheritance and the like to apply to a “couple.” It really does not matter to the state if that couple is living according to Catholic ideals, halakha, or their own private set of “commitments” that they have made to each other. For that reason, I have no more objection to the state calling the commitment between a same-sex couple “marriage” as I do to any of the other religious or civil relationships that are called by that name. But if it is found that it harms the religious sentiments of many Americans to share the word “marriage” with a same-sex couple, then perhaps the state should simply stop using the word “marriage” for anyone and instead define “civil partnerships.” Let the battle over the word “marriage” be fought on the battlegrounds of the religious communities (including our own), where the symbolism is of utmost importance, not in the civic arena, where tax policy, inheritance and medical benefits are at stake.

Rabbi Tilsen asks the right question -- what is the State's compelling interest in marriage? But unfortunately, he gets that answer wrong, which leads him to the wrong conclusion.:

As far as I can see, the state finds it advantageous to have a conventional set of rules for taxation, inheritance and the like to apply to a “couple.” It really does not matter to the state if that couple is living according to Catholic ideals, halakha, or their own private set of “commitments” that they have made to each other.

That is most certainly NOT the reason government has a compelling interest in marriage. Government has no reason to care about "a conventional set of rules". Far easier for government would be to have no special rules at all. Further, history shows the real answer to his question.

Government's interest in marriage is based on marriage being the foundation of a prosperous society. And "marriage" in that regard is the biological conjoining of opposite-sex partners, who will then procreate and raise offspring under their care and nurture.

Society requires children to continue. So obviously government wants to encourage procreation. But if children are abandoned, it creates a burden on government that government is ill-suited to handle, witness the many horror stories regarding orphanages.

So, our government, in it's wisdom, has recognised that having a stable family environment is the ideal method for children to be raised and become productive members of society.
Also, it is clear that the biological bond between parents and children creates the strongest stable environment. Without that biological bond, families are much more likely to break up as either the father or the mother, having lost their lustful bond with their spouse, have no parental bond with the children to concern themselves.

Let me repeat that a different way-- We see stories every day of how men who fathered a child feel compelled to be involved in their lives, even if they were never told of the child until the child has grown. And NOBODY will doubt the special bond of a mother to her child of her womb -- in fact, one often hears the argument that abortion is preferable to adoption because a mother cannot bear to separate from their offspring.

Also, it is clear that children are best trained by a combination of two parents of opposite sex, to expose the children to both sexes and allow them to develop normal, healthy views of sex and gender.

So government has a compelling reason to encourage and subsidize marriages as the building block of society. And it is clear that marriage they want to encourage should be on with people of the opposite sex who will likely have biological offspring, who will raise those offspring in the care and nurture of their real, biological parents, and produce the next productive generation of society.

There is absolutely NO reason for government to encourage ANY other type of union. Same-sex unions by NATURE will not produce biological offspring. At best any children will be related only to ONE of the parents, leaving the other with no bond who could easily leave. More often neither parent has a biological attachment.

Of course, it is true that adoptions exist, and some argue that is a valid government purpose. But evidence suggests that a child in a two-sex foster family is better off than in a same-sex couple situation. And in any case, special encouragement is not necessary
for the same-sex couple who wants to experience child-raising, as their desire itself is motivation enough.

The idea of encouraging a "non-marriage" relationship between opposite-sex couples is even MORE ludicrous. With same-sex couples, at least you can pretend you are encouraging a longer-term commitment to raise a family. But opposite-sex couples who spurn marraige have already shown a distaste for long-term commitment, and that distaste should be DISCOURAGED, not encouraged.

If it were not for the benefit to society of two-parent, biological families, Government would best stay out of marriage altogether, providing NO benefits whatsoever. Let people just do what they want to do, without involving government approval or disapproval.

But it is clear that society suffers when the family falters. And so government should be doing MORE to encourage biological family units, NOT less. Rather than entertaining same-sex "relationships", government should be strengthening the laws to provide incentives for families to stay together rather than give in to cheap, easy divorces.


Anonymous said...

exactly, the government has no vested interest in encouraging same sex unions because these unions are not the backbone of society. The government's role is serve the society and promote its stability. For societies to prosper, or even continue, reproduction is necessary, and it is best if this reproduction occurs in stable, committed homes. So, the government should promote traditional marriage and the success of those marriages. Putting a stamp of approval on same sex marriage discredits the whole reason the government should be involved in marriage at all.

Anonymous said...

I would agree with your thinking
if the government did NOT allow marriage between couples that can't or don't desire to reproduce. If reproduction the compelling Govt. interest let's make all hetero couples prove they can and will reproduce.

Anonymous said...

Very well said. I appreciate your sophisticated approach to the topic. I have been grappling recently with friends who believe personally that marriage is between a man and woman, but who as a matter of policy support same-sex marriage. It is difficult to get them agree that the state has a vested interest in perpetuating the fundamental building block of society, the nuclear family.

Anonymous said...

I see a lot of consistencies between SSM and the above mentioned state interests.

Given that same sex couples are raising children together in increasing numbers regardless of the legality of same sex marriage, is it not consistent with the above mentioned state interests that the same sex couples raising children be held to the same level of responsibilities and state support offered to opposite sex couples? If the state interest is in providing stabile families for the upbringing of children, it looks consistent to me.

Would legalizing SSM encourage same sex couples to have children, in turn increasing less than "ideal" family units? Does anybody have anything but speculative information on this? It seems unlikely to me, based on what first hand knowledge I have of the motives of homosexuals to raise children or start families, that the ability to marry will have any effect at all on their desire, ability or tendency to raise children.

Besides, state interests aren't about promoting abstract values or they cease to be "interests" and become utopian ideals.

If the choice is between the same number of children raised by unmarried same sex couples vs. married same sex couples, it's not inconsistent with this state interest to allow for same sex marriage. On the contrary it would be inconsistent with this interest not to recognize it, in effect depriving these children of the opportunity to have married parents/guardians.

What justification can the state give for overlooking the fact that abandoned children seeking adoption by same sex couples and children born into same sex relationships would benefit from the stability of that same sex couple being married?

Anonymous said...

People keep talking about the propagation of our species. But no one seems to realize that we already have 7,000,000,000,000 people on this planet--many of whom live without basic necessities.

In this country we have 300,000,00 people. Again, many of these people are living below the poverty line, are homeless, or in some other way dependent on the system to get their day-to-day needs.

The government DOES NOT currently have an interest in creating MORE people.


Doug Joseph said...

I’m reading your article and appreciating it. I will try to serve as your proofreader and point “typo’s” out to you, so you can correct them. I’d like for your article to be at its best for presentation to either side of the debate.

The following: “So, our government, in it’s wisdom, has recognised…”

Should instead say: “So, our government, in its wisdom, has recognized…”

“It’s” means “it is.” The possessive is just “its” (no apostrophe).

“Recognized” is spelled with a z.

“...her child of her womb” is redundant. Even saying “the child of her womb” would be better.

Finally, referring to evidence without citing it is less effective than listing even anecdotal reasons. I imagine the evidence does exist, but the article would be stronger if it pointed to or cited the evidence.

Thanks for your thoughts.

Anonymous said...

You present reasons for granting marriage to: (1) opposite-sex couples; (2) who are physically capable of having children; and (3) intend to do so.

However, NO ONE is arguing that the granting of marriage to such individuals is against the Equal Protection Clause. The issue is the DENIAL of the commitment and reliance of marriage to other couples.

What is the justification for excluding the ability of two consenting adults from agreeing to be financial, socially and legally responsible for the well-being of the other?

Would it be constitutional for the government to pass a law denying marriage to any childless woman post-menopause?

Anonymous said...

Others have noted some of the flaws in your argument, so I'll just note one. Well, two really, but the 2nd, while speculated upon when you wrote this, has only become closer to a reality in the years since.

You claim: "But evidence suggests that a child in a two-sex foster family is better off than in a same-sex couple situation."

That is patently false. Indeed, the opposite is true. The preponderance of evidence demonstrates that the children of same-sex couples do at least as well as those of opposite-sex couples. People who make your claim point either to poorly conducted studies, or carefully conducted studies that don't actually support your claim. What most of those studies actually conclude is that on average, children of opposite-sex couples tend to fare better than children in single-parent homes. It's a blatant lie to use those studies as evidence that opposite-sex couples are best for children. Children raised by same-sex couples *also* tend to fare better than children in single-parent homes, on average. So the point is moot. Some studies even suggest that the children of same-sex couples tend to fare a little better than their opposite-sex parent counterparts on average, depending on where they live. The prevailing theory for why is that no same-sex couple has kids by accident - they have to work quite hard to have children (or choose to become a co-parent willingly if marrying someone who already has a child), so all of the children are wanted children, and the couples tend to be extremely active, involved and dedicated parents.

You cannot logically ignore these simple facts. That's the opposite of critical thinking.

You also claim that "Same-sex unions by NATURE will not produce biological offspring. At best any children will be related only to ONE of the parents, leaving the other with no bond who could easily leave."

Setting aside how irrational this argument is as it relates to adoption and how bonded to their children non-biological parents typically are, we're close to the day when same-sex male couples will be able to *both* be the sole biological parents of their own children. Advances in stem cell research are making this possible, and we may be as little as 2-3 years away from this reality. There will be pushback from some with irrational arguments, but it will make your claim false. (Note: I only mention male couples for now because it's still a bigger challenge to achieve this for female couples, as a Y chromosome would have to be added to produce a sperm from their skin stem cells.)

Anonymous said...

It is funny to see someone post in 2015 on an article from 2006, and argue about what "recent studies" show and how the 2006 article doesn't properly reference the "recent studies".

But in fact, recent studies do show, once again, that children on average do better in biological 2-parent families than in other arrangements. Dismissing every study you don't agree with as flawed or improperly interpreted isn't much of an argument.

As to the 2nd argument, arguing that some future scientific advance might make an argument flawed is silly, given that we are talking about today. And nobody created marriage for adoption. Adoption exists, but it isn't the purpose of marriage.

In fact, and the article misses this point, marriage isn't primarily to provide for the children, but to acknowledge that an opposite sex couple having sex has the possibility for creating a child, and that government should prefer that couple be contractually bound first, for the good of society.

Same Sex couples will never accidentally have a child. They will have to take serious measures. This is good, in that they will clearly be loving the child they work so hard for -- but government needs less concern for children that are the result of such commitment already.

The funniest part of the argument though missed by the article and you is the idea that marriage is some government benefit. In fact, and SS couples will now learn this, marriage is a burden. It gives your spouse access to special rights against you. It raises your taxes if you both work. It provides you with additional work to perform.

More interesting, now that marriage is legal, SS couples who currently get health care from companies merely by declaring themselves will now lose that coverage, unless they take the firm commitment to get married. Some will, some won't want to. So the next push will be to force companies to allow non-married couples to declare themselves for purpose of getting health and other benefits.

Anonymous said...

You've disingenuously put words in my mouth I never said, and then argued against them. Specifically, you put "recent studies" in quotes, but as you can see, I never used those words nor even said anything about recent studies. Nor did I argue that "the 2006 article doesn't properly reference the 'recent studies.'" Kindly read what I wrote more carefully. There were many well-regarded studies about the children of same-sex couples back in 2006 that showed precisely what I explained. They go back over 30 years. There have indeed been more since, hence my proper use of present tense, but that wasn't my point. Anyone seeing this now can look up older and newer studies in reliable, well-respected sources. But as long as you bring recent studies up, if the author hasn't amended this blog entry accordingly or added a note (or written a new blog entry reversing his argument) since even more studies have come out, it'd certainly be appropriate now to do so.

The only recent development I noted had to do with same-sex biological parenting. But I specifically did _not_ use that as an argument against the 2006 article. Though I did note that it was speculated upon even back before 2006. I simply added it because it's currently closer to reality, and seems relevant and interesting for anyone happening upon this now. Remember, the author wrote this statement in the (arguably) simple future tense: "Same-sex unions by NATURE will not produce biological offspring." My point was that it seems likely that will not always be true.

You are absolutely incorrect about recent studies, and your suggestion that I dismiss those I disagree with is both false and unfounded. Unlike the blogger, I think critically and scientifically, disregarding nothing that's based upon a preponderance of compelling, well-conducted study. If you think you can name well-conducted studies that show that children raised by same-sex couples do worse on average than those raised by opposite-sex couples, I'd love to read them. But double-check first that you've been intellectually honest in your research. Studies that include children who weren't brought up in two-parent homes, or who are the product of bitterly divorced opposite-sex couples due to one parent being gay, obviously don't offer a direct comparison. That's where you may see the result you claim, but of course it's not a statistically useful or rational comparison.

If you point to the 2012 "New Family Structures Study," conducted by Mark Regnerus for the conservative Witherspoon Institute (which has been advocating against same-sex marriage for years), you're either not being intellectually honest or you only read a headline and neglected to read the widely criticized study itself. If you're interested in accuracy, you should read it. Because it was NOT a comparison of children raised by same-sex and opposite-sex couples. He only asked kids if they had a parent who had, at any time, had a relationship with someone of the same sex. Seriously. Which of course is not at all the same thing as being raised by a same-sex couple. In fact, only TWO of the children in the entire study actually grew up in homes headed by same-sex couples (both lesbian couples) for their whole childhoods. And only a small percentage were raised by a same-sex couple for more than even just a few years. The rest weren't raised by same-sex couples. Yet he lumped them all together in comparing them to children who were raised by stable opposite-sex couples for their entire childhoods. It's really a study about the problems family instability and broken homes can cause for children. Claiming it offers any useful data on children raised by same-sex couples is, objectively, ludicrous at best, and an outright lie at worst. It failed to compare children raised by stably coupled same-sex parents with children raised by stably coupled opposite-sex parents, which is necessary to conclude anything useful.

(more to follow...)

Anonymous said...

I respectfully and fully disagree with you about the purpose of marriage. If that were true, we wouldn't allow marriages for elderly couples or any other couple that can't have children. Moreover, if your view were true, it'd make more sense just to require any couple who conceives a child to get married. How would being married for years without having any children benefit society, by your argument?

Your argument about government not needing to be so concerned with couples who had children they really wanted is rather ridiculous, and by that logic, marriage isn't needed for opposite-sex couples who really really want their children, or who adopt. Fact is, there are many protections civil marriage affords, both material and immaterial - as your own arguments suggest you're at least partly aware of. Any child of a loving couple that co-parents him or her deserves them, and the parents and society at large deserve to benefit from them as well.

To use your language: one of the funniest things about your post is that you think marriage is not in the state's interest. But what's even funnier is that you even listed one reason it is in the state's interest, without realizing it! Namely, tax income to the state if both spouses earn sufficient income. But there are many more, including the burdens the state tends to be relieved of when loving couples help, care for and support each other both emotionally and financially. There tend to be physical and psychological health benefits, which amount to financial benefits to the state. And there's even more state interest when children are involved - regardless of whether they're mutually biological children, or step-children to one parent, or co-adopted, etc. (So your claim about non-biological children is meaningless here as well.) Much has been written about the ways in which civil marriage tends to be in the state's interest. If you're genuinely interested, do a bit of research. It's fascinating, and sometimes counter-intuitive.

Marriage can be a burden to some couples in some ways, sure. But to make that as a blanket statement and suggest it's true in the aggregate is both silly and woefully sad. It is or was a huge benefit to most couples I know and have known, including my parents, grandparents, in-laws, most friends, and my husband and me. The emotional, social, health, legal and financial benefits are tremendous. Sorry you have such a negative view of marriage, but if that stems from personal experience, you have my sincere sympathies.

As for health coverage from companies, the rules ought to be the same for same-sex couples as they are for opposite-sex couples. It'd be difficult for anyone to argue otherwise now, so I don't see what your point is. Some companies long ago extended coverage to unmarried partners - regardless of whether the relationship is same-sex or opposite-sex. They may or may not maintain such policies, but that's their choice. The only difference today is that parity is now possible across the board. That's a good thing by any measure.