Archive for August, 2010

Jay Bakker’s Speech on Gay Marriage

August 31, 2010

(Jay is the son of Jim and Tammy Faye Bakker.)

Stem Cells and IVF: Where’s the Consistency?

August 28, 2010

Steve Benen writes,

I’ve long looked for consistency — intellectual, moral, ethical — among opponents of stem-cell research, and I’ve never found any. If someone believes a fertilized egg that has grown to a few dozen cells is a full-fledged human being, deserving of the full protection of the law, then IVF would constitute nightmarish science. Conservatives would be compelled to protest at fertility clinics, and condemn families that try to have babies through the procedure. After all, the IVF process is designed to include discarded embryos.

But no one is making that argument. There’s a high degree of comfort level with discarding embryos at fertility clinics, but intense conservative opposition to medical research involving embryos that offer the promise of life-saving science. I’ve never understood this.

Read his article here.

Maggie Gallagher’s Demographic Bomb

August 27, 2010

Maggie Gallagher

Shortly after the 9/11 attacks on the World Trade Center, Maggie Gallagher, a conservative columnist who is now president of the National Organization for Marriage, wrote a highly influential opinion piece that is still kicking around on the Internet. Its title is “The Demographic Bomb,” and it was one of the first in a long succession of right-wing efforts to persuade the public that legalized abortion and homosexuality are not just violations of natural law but that they are contributing to a “birth dearth,” a “demographic winter” in which Western civilization will become dangerously diluted by immigration from more populous societies that don’t share “our” values.

But the “demographic winter” concept is about more than just abortion and homosexuality. It has much, much more to offer—namely, a semi-plausible real-world rationale for nativism, anti-immigration sentiment, anti-feminism, anti-secularism, anti-modernism, and Islamophobia. It was made to order for the radical right because of its visceral appeal to the oldest and most primitive part of our brain—where fear of extinction resides—and it provides fresh cover for racism, homophobia, and sexism.

I found Gallagher’s piece interesting because it shows signs of having been written hastily, thus offering a somewhat “unprocessed” version of her views—or those she is channeling. Since its publication, she has sharpened her message and learned to deflect questions that might expose the shoddy crafting of the birth-dearth ideology and its implied repudiation of the European Enlightenment and the American civil rights tradition. After all, efforts to roll back the progress of the last several centuries must be handled with finesse.

It was perhaps because I had lived in Saudi Arabia for 11 years that her opening paragraph immediately caught my attention. In it, she expresses puzzlement: How can certain fundamentalist Muslims live for so long in Western democracies without being seduced by our way of life? Instead, they denounce Western civilization as decadent and doomed. “How could they know us so well and still hate us so?” she asks. This very question had occurred to me after 9/11, but I didn’t find it quite so puzzling.

But Gallagher is packing an answer. These Muslims—i.e., those who have lived among us and yet despise us—have seen the truth about our sexual culture: It has become “debased, destructive, and ugly, full of fatherless children and fragmented families.” “Sex,” she declares, “has been demoted into a product.” And yet these dysfunctions, in her view, are only the “surface symptoms of an even deeper problem: a hollowing out of sexual meaning and purpose.”

Sexual meaning and purpose in America before its "hollowing-out" by modern feminists

Is Gallagher serving us the conservative version of liberal guilt—i.e., they hate us because we are bad and deserve their contempt? Even allowing that there has been a “hollowing out” of sexual meaning and purpose since an earlier era (which she will later place in some unspecified period prior to 1970), is Western civilization on the verge of collapse, as these Muslims predict? Gallagher is affirmative on both counts: Fundamentalist Muslims have correctly identified the problem: Our sexual culture is dysfunctional and we’re doomed if we don’t straighten up (see illustration).

I should say right up front that I share Gallagher’s concerns about the social ills she describes. No one who has eyes to see and ears to hear can be indifferent to the pain of broken families and scarred lives, the loneliness and insecurity of single motherhood, or the emotional trauma experienced by children caught in the crux of marital miseries. And sexuality is indeed a powerful force that can wreak havoc in people’s lives if it is not managed with wisdom and care.

Sexual meaning and purpose in the South before the feminists hollowed it out. (A Streetcar Named Desire)

However, Gallagher and the Islamic fundamentalists with whom she sees eye-to-eye about Western decadence have traced a straight line of causation from our sexual mores to a host of societal dysfunctions, as if no other explanations for the latter were possible. What about the role of alcoholism, drug addiction, poverty, racism, unemployment, mental illness, and environmental stresses, for starters? Gallagher sees fatherless children and fragmented families as symptoms of a loss of sexual purpose, but maybe this loss of sexual purpose is itself only a symptom of a larger disarray brought about by a multiplicity of problems. Maybe, in other words, it’s not all about sex, and maybe all our society’s ills cannot be blamed on abortion, homosexuality, and women’s liberation. We live in a complex world.

I’ve noticed what a fondness there is among fundamentalists and orthodox Catholics (Gallagher is the latter) for visions of imminent civilizational collapse. Such talk dovetails so nicely with apocalyptic scenarios from the Bible and the Koran, and it’s so useful for getting people’s attention and stoking their fears. However, prophets of doom are being rehabilitated even in scientific circles these days (e.g., climate scientists James Lovelock, James Hansen, Bill McKibben), so, though not even religious, I will shortly indulge in a bit of such talk myself. But first, where is Gallagher taking us, and why would her “hollowing out of sexual meaning and purpose” lead to civilizational collapse?

She elaborates,

In Western countries, people have for two generations stopped caring enough about having children to reproduce our population. Historian Paul Johnson writes about his vision of a long-term clash between Islam and the casually mentioned demographic bomb: “Should present trends continue, both these traditionally Catholic countries (Spain and Italy) will become majority Muslim during the 21st century.” Not just because of migration, but because the native birth rates have entered a sudden, dramatic, sustained collapse.

In Gallagher’s view, sex in the West has become uncoupled from any deep-seated meaning or public purpose, and that purpose is babies. If Islamic civilization triumphs over the largely Christian West, it will be because Islam has been successful in growing its population while the West has allowed its own to decline.

Successful population growth

Gallagher’s analysis already begs several vexing questions. One of them, of course, has to do with the very real possibility of ecological—and therefore civilizational—collapse resulting from planetary overpopulation. The facts and projections are well-known: Earth’s population has doubled since 1965, from 3.5 to nearly 7 billion, and it is expected to reach 9 billion within the next 30 years. Scientists warn that the planet’s ecosystem cannot withstand the accompanying increased demands on resources. Rising levels of atmospheric carbon dioxide, global warming, and pollution are all tied to population growth. Humanity is even now in the process of a very slow-motion collision with the planet—so slow, in fact, that we are scarcely aware it is happening.

Gallagher does not mention this end-times scenario, possibly because it is so much more compelling and factual than the one she favors. Then too, once the environmental crisis is acknowledged—along with all its implications for humanity—one more objection against homosexuality and legalized abortion is eliminated. Simply put, the environmentalist’s end-times scenario cannot be used to promote natural law. Quite the contrary, in fact: Natural law may be bad for the planet.

So, having bracketed out the overpopulation question and diverted our attention to the perils of underpopulation, she proceeds right on to the next question in line—about the implications of these ideas for individual rights—i.e., what do we have to do and what sacrifices are required?—and offers a formulation that is breath-taking in its implied repudiation of the civil rights gains made by women over the past century or so, if not the entire European Enlightenment:

Islam remains a successful civilization because it fulfills the two minimum functions any culture must: It channels intense social energy of individuals into the two great sacrifices of self: war and babies. The children in Islamic societies suffer, and the women even more. But though individuals suffer, the family system itself works. The society perpetuates itself. It even finds new adherents in our country, primarily among those who have suffered most deeply from our current sexual disorder, African-Americans. [Emphasis mine.]

This is an astonishing prescription that deserves reading several times if we are to absorb its full impact.

Army Ants

So this is what we are reduced to—war and babies? Men derive meaning and purpose from war, and women from bearing and raising children? Women and children are in the soft center whose boundaries are protected by warrior men? Why does this sound more like an ant colony than the advanced human civilization that Maggie Gallagher was born into and that provided such abundant opportunities for her?

Perhaps anticipating objections, Gallagher concludes her essay as follows:

The way forward is never the way back. Still, up until about 1970, Western civilization combined democracy, freedom, capitalism, and neighborliness with a functioning family system. Who can now say the same?

Notice the hedging: “The way forward is never the way back,” immediately followed by “Still,…” My sense is that Gallagher would like to take us way, way back—to an era when Western civilization looked more like fundamentalist Islamic societies of today. Sacrifices might be called for, but the payoff is that, in her words, “the society perpetuates itself.” It’s all about survival, folks, in case you’d forgotten that. And we’re not going to survive if pro-choice women and gays have their way. We’re all going…to…die.

Note, also, Gallagher’s characterization of Islam as a “successful civilization,” with the implication that it might serve as a model for Western societies because it prioritizes babies and war over—presumably—careers and peace. But if Islamic societies are so worthy of emulation, then why should Gallagher fear Islamic influence in the West? She should welcome it.

And what is the significance of 1970 for Gallagher? That was a year of intense activism on the part of women supporting the Equal Rights Amendment, which, though passed by congress two years later, was never ratified by the states, thanks to lobbying efforts by anti-feminist Catholic leader Phyllis Schlafly and others. Nevertheless, the seventies saw the first in a long succession of anti-discrimination measures benefiting women. For a quick summary of civil rights gains for women since 1972, here’s a passage from Head and Heart, by Garry Wills:

Congressional action included these acts: In 1972, Title IX of the Education Amendments to the Civil Rights Act of 1972 opened up campus activities to women on an equal basis. In 1974, the Equal Opportunity Act prohibited discrimination on the basis of sex for getting consumer credit or public assistance. In 1978, the Pregnancy Discrimination Act protected women from being fired or denied a job or promotion because of their pregnancy. In 1994, the Violence Against Women Act provided special protection for victims of rape or domestic abuse.

Court action included these decisions: In 1973, Roe v. Wade gave women freedom to choose an abortion. In 1974, Corning Glass Works v. Brennan ruled that women could not be paid less because men would not accept the work in question. In 1976, Planned Parenthood v. Danforth denied that parents can forbid an abortion. In 1983, City of Akron v. Akron Center for Reproductive Health, Inc. said that a waiting period before having an abortion could not be imposed. In 1986, Meritor Savings Bank v. Vinson decided that sexual harassment is a form of job discrimination under Title VII of the Civil Rights Act of 1964. In 1986, Thornburgh v. American College of Obstretricians denied that a woman can be given an abortion only after detailed instruction on fetus development. In 1989, Webster v. Reproductive Health Services ruled against Missouri’s restrictions on the right to an abortion. In 1992, Planned Parenthood v. Casey ruled against Pennsylvania’s attempt to restrict abortion rights.

So which of these victories for women’s rights have led to our current crisis, as Gallagher sees it? What about equal access to campus activities, consumer credit, public assistance, jobs, promotions, equal pay, and protection from rape, domestic abuse, and sexual harassment? Gallagher attended Yale, so we would assume she supports equal access to campus activities. She probably has consumer credit, which facilitates her travels from one speaking venue to the next. As a former unwed mother, she can identify with other women in such circumstances and would probably support some form of public assistance for them and their children (One would hope!). She has a robust career and probably earns pretty big bucks, so it’s a safe bet she favors equal opportunity for women in the workplace. I think we can assume she supports protections against rape, domestic abuse, and sexual harassment.

That leaves abortion, and we know where she stands on that. So we are left with two broad possibilities regarding all the remaining civil rights gains for women in the past 40 years: She supports them, or she sees them as a mistake. (We’ll assume for now that she’s not selective.)

Suffragettes in the early 20th century

If she supports them, then she’s happy with all the freedoms that she now enjoys, including, presumably, those that were won for her before 1970—the freedom to marry and divorce whom she pleases, her right to vote and to own property, her right to hold public office, to drive a car, to choose her own clothing, and to travel and associate in whatever way she likes. Taken altogether, what has allowed Gallagher to prosper in the life she has freely chosen is an enormous range of individual liberties wrested from patriarchal culture by women over the past several centuries.

But then, how can she characterize fundamentalist Islamic societies as “successful?” In many of them, women are not guaranteed any of these rights, not even protection against rape. They are considered to be the property of men, and many become virtually infantilized as a result of life-long dependency on male family members.

Saudi Arabia is ranked 130 out of 134 for gender parity in the World Economic Forum’s 2009 Global Gender Gap Report. It was the only country to score a zero for political empowerment of women. Women’s rights there, as in many or most predominantly Muslim countries, are defined by Sharia law, which is often interpreted according to tribal customs. Women may not drive, they may not appear in public without an abaya (covering their head and face), they may not freely associate with men other than family members, and they must have a male guardian, whose permission they must seek for marriage, travel, education, employment, opening a bank account, and elective surgery.

Preparation for stoning, Iran

And it gets worse. Much worse. Wherever the most Fundamentalist strains of Islam prevail, women may be stoned for committing adultery or murdered by male family members for “dishonoring” their families. In Egypt, 95% of pre-pubescent Muslim girls experience genital mutilations, a practice that has been internationally recognized as a violation of the human rights of girls and women. Forced marriages are commonplace in all traditional Muslim societies.

Gallagher began her essay by expressing puzzlement that fundamentalist Muslims could live among us and still hate us, and she concluded that their scorn was justified because of our deteriorating attitudes toward sex.

I will end this essay on a note of puzzlement as well. How can Gallagher have been raised in a beautiful and privileged place like Lake Oswego, Oregon, later earning a degree at Yale and enjoying all the incomparable freedoms that life in the U.S. offers women—freedoms for which her ancestors and mine fought and suffered—and still believe that Saudi Arabia’s or Iran’s model for the treatment of women is more “successful” and more worthy of emulation than that of her own country?

At the very least, Gallagher’s prescription for our society’s dysfunctions would strip away centuries, even millennia, of progress toward freedom and equality in Western civilization. What, indeed, could be more destructive of the very civilization that Gallagher claims to protect?

Mae West: No "Escape from Freedom" necessary

Maggie Gallagher’s Ideal Marriage (3)

August 24, 2010

Maggie Gallagher

My friend Dean Hansen shares his thoughts about the Gallagher/Boies debate:

Maggie says that marriage is “fundamentally an idea.” Well, the best ideas are fluid, pliant and flexible. They accommodate change and growth. The idea that marriage should always be between a man and a women is no longer sustainable. The change she rebels against doesn’t represent a new idea, but an enlargement of the earlier one, and a necessary enlargement that honors the same commitments, passion and dignity as the prevailing concept.

Her argument rests on the belief that there’s something special about marriage that justifies its unique status. And what is this difference that she lasers in on? You can plump up your tummy and bang out your own biological children. And by doing so, add an additional burden to an already overpopulated world whose resources cannot rationally sustain them. Or, you can honor an extension of the existing ideal by acknowledging gay marriage for its complementary and equally unique status: Men cannot make babies with other men and women cannot make babies with other women. But what both can do is express the benefits of filiation and nurture by absorbing what heterosexual marriage in its illusions of uniqueness recklessly throws away: wards of the state, orphans, abandoned and homeless children. Good parenting should not be held hostage by heterosexual arrangements. David Boies, to his credit, honed in on this point right away.

Since every gay child in the world, male and female, came into the world through the union of a heterosexual couple, the marital union itself is responsible for the very diversity which its advocates find some way to be offended by. Homosexual men and women are our children. Our brothers, sisters, sons and daughters. In short, they are our family, and we should honor their happiness and fulfillment as we honor our own.

Maggie says that gay marriage represents the end of the idea that traditional marriage is an important and distinctive ideal for culture. And she’s right [about the importance of traditional marriage], if we want to go on having a future on this planet. She’s wrong to suggest that marriage can legally or morally continue to ignore the needs of people who have been excluded from its benefits and blessings without any rational or reasonable cause.

Maggie Gallagher apparently doesn’t have any argument against gays being happy so long as their desire for full enfranchisement doesn’t cause her any instinctive distress.

Installing Recessed Lighting the Trinitarian Way

August 24, 2010

Uh-oh. He's not a Trinitarian.

Title VII of the 1964 Civil Rights Act prohibits religious discrimination in employment but exempts religious organizations in cases where the employment is connected with the organization’s religious activities. For example, a Baptist church may reject non-Christian—or even non-Baptist—applicants for a position such as Director of Religious Education. (See the exact wording of the exemption clause at the end of this post.) The church might even require adherence to very narrow doctrines about faith and practice in filling such positions.

But what compelling interest does the church have in requiring its Facilities Manager or its IT staff to profess a particular brand of Christianity? Is there a “pre-dispensationalist way” of hooking up a gas stove or installing recessed lighting? Does rejecting the Trinity or the Resurrection make one incompetent to troubleshoot a frozen computer?

This was the question asked by the plaintiffs in a 2007 lawsuit brought against World Vision, a Christian aid organization, by three of its employees—Sylvia Spencer, Vicki Hulse, and Ted Youngberg. They were fired when World Vision discovered that, though Christians, they did not believe in the Trinity. Spencer worked in technology and facilities, Hulse performed various office duties, and Youngberg coordinated shipping and facilities needs.

World Vision receives more than half its funding from government grants and gifts-in-kind. The organization provided no proof for its claim that 84% of cash contributions were from churches. Though tax-exempt, it is not owned, managed, or controlled by any particular church.

Nevertheless, on August 23 of this year, the 9th Circuit Court of Appeals ruled against the plaintiffs in a 2-1 decision, concluding that World Vision qualifies for the Civil Rights Act exemption because “the general picture” of the organization is “primarily religious.”

In her dissenting opinion, Judge Marsha Berzon wrote that the intent of Title VII was to protect the religious freedom of employees by insulating their religious beliefs from their economic well-being and that the exemption was designed only for organizations devoted to prayer and religious instruction.

Judith Lonnquist, attorney for the plaintiffs, believes a motion for reconsideration may be a possibility.

Here is the exacting wording of the exemption clause:

SEC. 702. This title shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities or to an educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution.

Conservation of Inequality

August 24, 2010

It seems to me that for the past 70 years or so, conservatives , at least in the U.S., have opposed the demands for liberation and equal rights by Jews, blacks, women, and gay people. And now Republicans wonder why they don’t get many votes from these people. The good news is that once each struggle for civil rights has been clearly won, conservatives accept it and insist that they in fact never opposed it. After a generation of insisting that a mother’s place is in the home, conservatives spent 2008 declaring that the right place for a mother of five, one of them pregnant and one a new-born with special needs, is next door to the Oval Office. But the civil rights struggle of our own time is that of gay and lesbian people, and conservatives are still performing their traditional role of opposing it.

–David Boaz, Executive Vice-President of the Cato Institute

Maggie Gallagher’s Ideal Marriage (2)

August 23, 2010

Maggie Gallagher

I have never met a gay marriage advocate who can say the ideal for a child is a mother and a father.

–Maggie Gallagher, President of the National Organization for Marriage, which opposes same-sex marriage. She is responding to Keith Boykin during a debate at the National Constitution Center on October 20, 2009. Watch the debate here.


Nick Herbert, MP

There is a huge shortage of people who want to adopt, and I don’t think we should deny the opportunity of children to be brought up in a loving environment, and I think that environment can be offered by a gay couple. But I also wanted to be honest about what I think are ultimately the best arrangements for a child, which is that they should be brought up by a loving mother and a loving father. I happen personally to think that is, ideally, the best arrangement… Having said that, I don’t think it’s proper to stand in the way of a gay couple who may well offer just as good an upbringing for children.

 –Nick Herbert, British Conservative Party politician and Member of Parliament (MP). He was the first gay Conservative MP to be open about his homosexuality when he was initially elected, and he supports same-sex marriage.  Herbert spoke these words during a debate with Maggie Gallagher and Andrew Sullivan at the Cato Institute on February 17, 2010. Watch the debate here. 

UK’s Charity Commission Rules Catholic Care May Not Discriminate Against Gay Couples Seeking to Adopt

August 23, 2010

The UK’s Charity Commission ruled on August 19 that Catholic Care, a Roman Catholic social care organization offering adoption services, cannot discriminate against gay couples who wish to adopt. The agency had sought an exemption from the 2007 Sexual Orientation Regulations, which made discrimination on the basis of sexual orientation unlawful where goods or services are provided to the public.

Catholic Care serves the dioceses of Leeds, Middlesbrough, and Hallam, South Yorkshire. Its adoption service represents about 5 percent of its annual spending and, like every other such agency in the UK, it receives taxpayer subsidies.

Only five months ago, the agency had won a High Court battle with the Charity Commission over this issue. The court’s judgment, however, only required the Commission to reconsider the case and to justify its decision in light of Article 14 of the European Convention on Human Rights, which deals with discrimination.

The Charity Commission argued that children’s best interests are served by providing as wide a pool of potential adopters as possible, that gay people were suitable parents, and that religious views did not justify discrimination in cases where taxpayers’ money is involved.

Catholic Care must now either change its policies—a move that might result in its losing funding from the Church—or stop arranging new adoptions. It might, however, continue on as an adoption support agency, offering services to those who were adopted in the past.

The Undetected Outsider

August 22, 2010

I was unable to discover who created these images, but my thanks go to the artists—and to my friend Dean for sending their work my way.

There is probably no one who hasn’t had the experience of being the undetected outsider in a hostile group. Sometimes the best advice under such circumstances is to keep one’s mouth shut and try to look inconspicuous. (Or not, depending on one’s objectives and personality type). I remember how exposed and vulnerable I used to feel, even as an adult, when accompanying my parents to fundamentalist church services during my visits to their home in Texas. There I was, a homosexual and an atheist, sitting in the pews and smiling benignly at good Christians who would probably have treated me as a sick and godless criminal deviant if they had only known. That was the era of AIDS hysteria, and I might have found a social cordon sanitaire erected around me in a heart-beat.

I wasn’t “out” to my parents at the time, but I had made my secularist views quite clear to them, though usually in measured doses. Nevertheless, they considered me officially “saved” because I had supposedly “accepted Jesus as my personal savior” at age 12. (The truth was that I had caved to pressure to “walk the aisle.”) So they just humored me when I expressed any skepticism about faith. (“It’s okay, he’s in the bag. He’s going to heaven,” they probably thought, sucking in their breath.) And so I tagged along to church, where they knew they could count on me not to embarass them. Thus one becomes a master at the art of keeping a low profile, adopting the protective coloration of one’s surroundings. Surviving.

What would I do now that I am an out-and-proud, in-your-face gay man and an aggressive confrontational, take-no-prisoners atheist?

I dunno. It depends. I invite suggestions from anyone who is interested in this kind of ethical dilemma.

The Presumption of Paternity (A Conversation)

August 21, 2010

Saint Serge and Saint Bacchus shown in a standard Roman portrayal of a wedding. Their official witness is Jesus Christ. The icon is from St. Catherine's monastery on Mount Sinai.

I had the following blog conversation with “Michael,” in response to Hadley Arkes’ essay, “Judge Walker and the Language of the Law,” in The Catholic Thing, August 17, 2010:


Jean Carbonnier, the great French jurist and author of the leading commentary on the Code Civil, asked, “What is the state’s interest in marriage? Why does marriage exist, as a legal institution?”

In order to answer this question, he examined the Code itself and how it deals with cohabitation, PACS (civil unions, same-sex or opposite-sex) and marriage respectively.

His conclusion: « le cœur du mariage, ce n’est pas le couple, c’est la présomption de paternité ». [“The heart of marriage is not the couple, but the presumption of paternity.”]

In other words, the institution of marriage entails consequences with respect to filiation that the other forms of union do not. Moreover, this leading jurist could find no other significant difference at all, in the laws governing cohabitation and civil unions on the one hand and marriage on the other and no-one has been able to suggest an alternative reading of the texts themselves.

This suggests that legal concept of marriage is, in its nature, gender-specific and, also, that it is solely concerned with the status of children and their parents.

Doughlas Remy responds: 

Jean Carbonnier’s understanding of marriage under the French Code Civil is just one more example of how protean the concept of marriage has been across cultures and throughout history. Proponents of same-sex marriage (SSM) are often accused of trying to change the definition of marriage, but there has in fact been little agreement about what that definition is. Where Carbonnier’s distillation emphasizes paternity, earlier conceptions might have stressed property. Today, ten countries define marriage as a legally recognized union between two consenting adults, regardless of their gender or their intentions about procreation. The liberal democracies seem to be moving toward an expanded idea of the institution—one that encourages loving commitment between two people for whatever purposes are meaningful to them. Young people may marry because they want to spend their lives together and conceive children. People past child-bearing age may marry for companionship, for security in their twilight years, or simply because they are madly and passionately in love with each other and want recognition of their bond. It is not the business of the state to tell anyone that their reasons for marriage are unacceptable unless some harm might result from the marriage.

The idea that marriage is uniquely for procreation is basically a religious one, as is the idea that only oppositely gendered people should marry. Those who have such views are free to marry accordingly. However, our Constitution’s disestablishment clause protects the rest of us from having that idea imposed on us. Judge Walker understood that the more restrictive definition of marriage enshrined in the California constitution by Prop 8 was based in religious belief, and he correctly determined that the state of California had no compelling interest in upholding it. Never mind that voters had approved it. It violated the equal protection and due process clauses of the 14th Amendment to the US Constitution.

In the national debate we’re having about SSM, the view that procreation is the telos of marriage will never have legs. Marriage has already gone way beyond that point, and there’s no going back. Millions of Americans marry for companionship, for love, for security, for the raising of adopted or step children, and for many combinations of the above. The definition of marriage has already changed so much that Carbonnier’s more restrictive view of it would probably seem pretty radical to most Americans.

Why, indeed, must there be only one model of marriage? We live in a pluralistic society whose members have an astonishing variety of needs, goals, tastes, aptitudes, and interests. The “one-size-fits-all” approach can only result in making marriage less attractive. If we believe that joy, health, stability, and security are preferable to loneliness, social insecurity, and promiscuity, then let’s support any form of marriage that offers these goods.

Michael responds:

Thank you for your observations. Carbonnier’s analysis had to address the differences between the two legal régimes of marriage on the one hand and civil unions (PACS) on the other (as well as unregulated cohabitation) and to extract a principle from them.

He argues, very convincingly, in my submission, that the presumption of filiation is the cardinal difference and all others can be subsumed under this principle. Does this mean that procreation is the end or purpose of marriage? No, it simply means that the state has a clear interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and for an orderly succession to property. To date, no better, simpler and less intrusive means have been found for ensuring, as far as possible, that the legal, biological and social realities of parenthood coincide. And that is no small thing.

It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that Carbonnier’s views are either the result of religious convictions or an attempt to import them into his interpretation of the Code.

Doughlas Remy responds:

If all that is meant by “presumption of paternity” is that the state has a “clear interest in the filiation of children being clear, certain, and incontestable,” then neither I nor any other advocate of same-sex marriage should have any issue with it. We can all agree that the state has a role to play in assuring that children are properly cared for and that they benefit from an orderly succession to property. But homosexual couples may have children by adoption, by previous marriage, by artificial insemination, or by use of surrogates, so I fail to see how Carbonnier’s concept of marriage is therefore gender-specific, as you claimed in your earlier comment.

The only couples that Carbonnier’s scheme would appear to exclude are ones that have either no possibility or no intention of having children. But these couples also need protection of the state in matters of property distribution where there is a separation or a death. Does Carbonnier think the state has no role to play in such matters, or does he simply create a special category for these couples (e.g., “civil unions”)?  Is that is so, then it is for the people of France to decide if they like the nomenclature. I don’t think it would be very acceptable in this country, whether because we are more egalitarian or because we just never cared for unnecessary distinctions.

So far, I don’t see anything in Carbonnier’s analysis that should preclude the state’s treating a same-sex union exactly the same as an opposite-sex one. What is the difference, other than the gender pairings of the couples? And what is the state’s compelling interest in regulating that? Should only the pairing that has the best record of raising children be allowed to marry? Well, then only lesbians will qualify, and the opposite-sex couples may have to settle for something like “civil unions.”

I think what Judge Walker’s opinion did was to strip away all the pretense that there is any rational basis for the ban on same-sex marriage. What it all comes down to is prejudice, privilege, and fear of change.

Michael responds:

[Michael answers my question about Carbonnier’s view of the state’s role where couples have no possibility or no intention of having children.]

Carbonnier is proposing nothing. He is analyzing the situation, as it exists. Civil unions (PACS) already exist and are available to all couples, whether of the same or of different sexes. He is pointing out what is unique to and distinctive of marriage, in contrast to PACS and unregulated cohabitation. This he finds in the «présomption de paternité.»

Now, there is no place for this presumption between parties of the same sex, rendering marriage gender-specific, in a way that PACS are not.

Once (legal) filiation is constituted, the rights and duties of parents and children are identical in all cases, so there is nothing distinctive about marriage in this regard.

Paulus was, I suppose, a closet Christian (or Jew?) when he wrote, “Pater est is quem iustae nuptiae demonstrant,” a maxim that has found its way into every civil code in Europe.