Same-sex marriage, biology, and the public interest

Last week I expressed skepticism that the exclusion of same-sex couples from marriage can be justified based on the nature of the sexual act.  A reader says "not so fast": 

You stated that you "don't think the nature of the sexual act argument is convincing," but you did not say why.  It seems to me that the arguments put forward by Nussbaum and others too quickly brush aside the biological reality that there is only one relationship - man and woman - that can produce children through sexual intercourse.  The state's interest in marriage flows from the *unique* nature of this child-producing relationship between man and woman.  As you noted in your post, the issue does boil down to the "nature of sexual union", but I think there is a meaningful and objective difference in the nature of the sexual union between a man and a woman who can produce a child through through sex that is formed from and naturally connected to both of them, and homosexual sexual relationships - whether between sisters or unrelated lesbians - that cannot produce children through sex.  Disgust and religious sentiment are not really the drivers here - it's biology. 

 

When this biological reality is not taken seriously, the case for gay marriage always focuses on utilitarian arguments about social good (as your argument did in the MOJ post).  The problem with the utilitarian argument - to expand marriage to include gays because it is a social good - has no end point and marriage ends up encompassing more than just gay relationships.  Lots of groupings of people can adopt and raise children, or make meaningful life-long commitments to each other (including elderly sisters and lesbians and polygamists).  Marriage stops having any objetive basis and becomes whatever the social scientists determine is best.  In the end, I think that will undermine marriage (and not because marriage will include gays, but because marriage will have no objective basis). 

I don't reject this argument wholesale, but I'm not convinced that the categorical capacity to procreate is enough to limit marriage to heterosexual couples.  At the same time, I agree that marriage cannot be a self-defined expression of personal fulfillment.  (And I fear that's where we're headed if marriage becomes a religious relic and civil unions become the government default for everyone.)  Marriage is inescapably public.  I agree with Milton Regan that a "focus on the substantive ends promoted by marriage" is preferable "to an argument for legalization that rests on the claim that the state should defer to private ordering of intimate relationships."  An argument based on substantive ends "acknowledges that intimate behavior is of moral interest to the community, but asks that the community engage in an act of empathetic imagination that provides the basis for respecting homosexuals and accepts them as full members."

 

If the categorical capacity to procreate is going to carry the weight of same-sex couples' exclusion, we will need to do more, in my estimation, than invoke the slippery slope.  Marriage is not just a care-giving commitment; there is, or should be, a deeper sense of mutual self-giving at work.  I do not have any problem distinguishing the sort of commitment between my married friends who are incapable of procreating and elderly roommates.  There are political arguments to be made on this front.  There is a huge social and personal cost to the exclusion of same-sex couples from marriage and yes, that might make me an instrumentalist in my approach to marriage, but if we're concerned about the future of marriage, we can't turn a blind eye to its role and function, can we?  And while I recognize that same-sex marriage changes the definition of marriage, I'm still not sure how opening marriage to same-sex couples meaningfully changes -- much less marginalizes -- marriage's role in society or its importance to the self-transcendent dimension of personal identity.

 

(Since I'm posting this on the day of the arguments in the California Supreme Court, let me add that our society's conversation about the nature of marriage should proceed through political channels; a judicially constructed definition of marriage will lead us down the path of marriage as private ordering, I fear.)