UNBEATABLE INFERTILITY ARGUMENT: Michael Triplett replies to Eve and Maggie

I've been thinking a lot about the "unbeatable infertility argument" which you find so overtly abstract because I find it just the opposite: so concrete and real. If we want to create a child-centered institution with legal rights and policy importance, then we do need to figure out what to do with the infertile.

If, as you say, "[m]arriage is the place where society promotes childrearing, because marriage links children to mothers and fathers," then what do we do with marriages where that is impossible and not the goal? Clearly, in the case of SSM, we ban it and deny legal rights. So why are marriages of the barren different? The Bible stigmatizes barren women and historically, a woman's worth in a marriage was defined in part for her ability to have children. Therefore, just like SSM, infertility raises the question of what do with do with marriages that are stigmatized both historically and theologically. In the case of infertile couples, we annoint them with legal rights and in the case of SSM, we try to pass constitutional amendments banning them.

Admittedly, it's a crazy argument but it raises an interesting point about the collision of legal rights, public policy, and social policy. As the courts that have wrestled with it have demonstrated, it's difficult to win an equal protection argument in favor of only traditional marriage when it is laden with so many equal protection contradictions. If marriage is about child-raising, then you can't make an equal protection argument on that basis when you allow infertile people to marry. But that's the legal arguments we can have for days.

Both you and Elizabeth Marquardt have talked eloquently about "fatherless children" and how children yearn for a father and mother. As an advocate for SSM, it's the hardest question to overcome. Undoubtely, children raised in "fatherless" families miss that connection with their father and their adult identities are often intrinsically linked to that loss. The conflict--which is Oedipal in its creation--asserts that our identities are only fully developed when we have a father and a mother that are married.

So was Freud right about all of this? Or is it possible that the yearning for the missing "father" is actually the yearning for the missing "parent" and that the "parent" need not be gender-specified? The reason children talk about missing "father" is because they know that's what is missing from their "mother's" life. If the only language that exists is that parents = father + mother, then of course they will talk about missing "father" when only mother is still around.

But isn't it possible that children with two, intact parents of the same sex won't miss "father" because they either have two of them or they have two, loving mothers? Isn't it possible that they will miss little because they have an intact family and their parents are not stuggling with the emotional and financial impact of mom having a child with a father who isn't around? Is it possible that these children, who have been adopted from dysfunctional opposite-sex relationships, will thrive in a home where those dysfunctional mother and father no longer exist?

More importantly, why is providing important legal rights to couples and parents that are not "mother and father" saying that mother and father don't matter? Why don't infertile marriages send the same message? I guess I have a lot more faith in the institution and concept of marriage then you do, because I believe it will survive SSM. I believe people will always understand that having two parents are important and that in 97% of those situations, those two parents are a mother and a father. The presence of mother and mother or father and father doesn't diminish the importance of fathers committing to their children or mothers making better decisions about the fathers they choose and that those parents should come together in marriage. In fact, it reinforces the importance of two people committing to raise children despite the societal odds.

That, of course, brings us to Maggie Gallagher's anecdotal example of the adult child who hated being raised by two moms. I cringed when I read the story because I knew it would fuel pages of "we told you so" rhetoric. It's a sad story about a child raised in a very different time then 2004, but tragic nonetheless. It is, however, not really the "proof" that these children are harmed but only that one sad adult was harmed by her parents--just as the millions of adults can tell stories of being raised by dysfunctional heterosexual parents in intact marriages.

[Eve notes: I asked what Michael thought of this post from Maggie Gallagher. Excerpts from Maggie's post (in bold):

"I start with the social institution. Marriage is the place where we think it is a good idea to have children. This is no longer written anywhere in the law, when we got rid of provisions restricting the sexual license to marriage and also giving special privileges to children born within marriage.

"But regardless of whether or not the law is articulate about this purpose, it is still one of the things that marriage is (marriage not being the sum of its legal incidents).

"Therefore, in giving marriage to unisex couples, we are saying that we think it is a great idea of unisex couples to acquire children. We are saying children do not need mothers and fathers.

"None of that is true with any male-female union."

Michael replied:]

In regards to Maggie's comments about "[m]arriage is the place where we think it is a good idea to have children" and "regardless of whether or not the law is articulate about this purpose, it is still one of the things that marriage is (marriage not being the sum of its legal incidents)":

As a lawyer, I guess I keep going back to the fact that it is a legal relationship. No one wants to amend the constitution just because of the marriage concept (well, maybe they do) but by altering the constitution and limiting the ability of legislatures and courts to create law, it comes back to the fact that marriage is about the legal rights and not just the philosophical or social construct.

If we believe that we should create social policy that "marriage is the place where we believe it good to have children" then why aren't there fertility requirements or financial disincentives to not having children? Aren't all those childless male-female couples hurting the instutition by their unwillingness or inability to procreate? Shouldn't the fertile people be encouraged to enter marriages with other fertile people (just as Maggie has suggested gays should enter sham marriages with heterosexuals so that children can be created). Aren't they putting selfish love and adult needs before the needs of children?

I also think it goes back to that belief that unisex couples raising children is a harm or should be discouraged. While not the "gold standard," we recognize non-"gold standard" relationships in our legal and social consruct of marriage already (second marriages, infertile couples) because we believe there is some social or legal good. Why is there as social and legal good in encouraging infetile couples to marry when they can never have the "gold standard" parenting structure or even have children, but refuse to consider a social and legal good in encouraging same-sex couples?
posted by Eve at 7:46 PM VOTE

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