The Liberal Case Against Gay Marriage
| June 25th, 2004In a peculiarly odd article, Susan M. Shell presents “The Liberal Case Against Gay Marriage”. Referring to the article as “flawed but fascinating”, Eve Tushnet asks if we agree or disagree.
On the whole, I cannot answer Eve’s question; I can only read Dr. Shell’s article and repeat “huh”?
However, I thank Eve for suggesting we read this article. I recommend it highly; do not skip the part about not turning dead people into human lampshades!
It seems Dr. Shell tries to make a liberal case against same sex marriage. She ultimately proposes that we enact some sort of civil unions. These unions would be nearly indistinguishable from civil marriage. The proposed differences would be:
- There is no presumption of parenthood when a lesbian has a baby. If her wife wants to be the legal mother, she’ll have to adopt the baby formally. (I learn from Dr. Shell, that, evidently, homosexuals don’t want presumed parenthood of their spouse’s baby.)
- The unions might not have all the benefits of marriage. We aren’t told which they might lack.
- These unions would be available to anyone who wishes to enter them, including two sisters, homosexual couples, and evidently heterosexual couples. The couple is not required to have sexual relations.
Dr. Shell does mention a disadvantage of her proposal:
Yes. I suspect civil unions would leave many on both sides dissatisfied.
June 25th, 2004 at 4:08 pm
I can think of one example in which a lesbian wouldn’t want to be the co-mother of her wife’s baby–if the wife were pregnant due to cheating. I imagine this will come up rarely, though, as by the time that the baby is born the couple has had 9 months to decide if they want to stay together.
This comment was written by Amanda.But on the off-chance that she doesn’t want to claim her wife’s baby, I have a funny feeling no one is going to make her. Since two women can’t make a baby together, I don’t think anyone will put up a fight with a lesbian who wishes to challenge her wife’s baby’s paternity. ;)
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June 25th, 2004 at 4:53 pm
no such thing as a “liberal case against gay marriage.” no self-respecting liberal would try to make one.
i think marriage by government should be abolished, personally, and that everyone–gays and straights–should have to get a civil union if they want a legal union. marriage should be left up to religious institutions. that would completely disarm all the conservative yahoos (including this guy) who have a problem with the government “redefining marriage.”
there’s already precedent in some religions and some churches that a civil marriage is not recognized–that for the union to be valid it must be performed in a church. it’s about time the government saw the reverse as true as well. not to mention, some marriage licenses (especially in southern states) make reference to god and/or “our lord” and/or the gospel, a serious breach of the first amendment if you ask me. time to put an end to it.
This comment was written by dana.Report this comment to the moderators
June 25th, 2004 at 5:13 pm
Before addressing the merits of her argument, can somebody please direct her to an editor? Or at least a copy of Strunk & White?
I can think of one example in which a lesbian wouldn’t want to be the co-mother of her wife’s baby–if the wife were pregnant due to cheating.
Existing marriage law can handle this–it’s not as though heterosexual couples haven’t worried about cheating for millenia.
The law presumes the husband is the father of his wife’s children; it’s difficult, and in some states nigh-impossible, to challenge that. If we can make legal fiction trump biological fact for male-female couples, why not for same-sex couples?
This comment was written by mythago.Report this comment to the moderators
June 25th, 2004 at 6:00 pm
The title of her essay, “The Liberal Case Against Gay Marriage,” is as much of a misnomer (some would call it a lie) as is the title, “Healthy Forests Initiative,” as put for by GWBush. I don’t believe that the liberal position is, as she says, “…special responsibility for children lies with the biological parents.” She is just falling back on the “marriage is for procreation” assertion and additionally claiming that that is something that liberals believe.
Then there is all that truly strange stuff in the middle of the essay.
Ah, well. Maybe I should write an essay claiming that the conservative position is obviously that marriage is not primarily about procreation and then ask Eve if she agrees with that. Just because someone claims that something is a “liberal” position doesn’t mean that it really is.
This comment was written by Jake Squid.Report this comment to the moderators
June 25th, 2004 at 7:11 pm
I particularly liked the part about same-sex marriage being somehow the same thing as throwing a funeral for yourself (or maybe it was like abolishing funerals altogether). That had to be one of the dumbest analogies for same-sex marriage I’ve have seen.
I also love the fact that after nattering on about how essential marriage is to the survival of society, she then suggests that, rather than open it up to some more people, we should move towards abolishing it. But then she isn’t alone in the right-wing anti-marriage crowd.
You know, I have always been an opponent of the institution of marriage (and a hypocrite), but my new fellow travellers are really leading me to rethink my position…
This comment was written by Charles.Report this comment to the moderators
June 25th, 2004 at 8:08 pm
>>I can think of one example in which a lesbian wouldn’t want to be the co-mother of her wife’s baby–if the wife were pregnant due to cheating.
This is exactly analogous to a wife on her husband and getting pregnant. He might not want to be the father. (And the biological father might want to claim paternity.)
I’m pretty sure most states have provisions for this. I’ll admit, I haven’t checked state law in general.
As to most or the article. I was trying to isolate things to comment on, but I just kept saying “huh”. Starting from the beginning: Are there only two moral positions regarding same sex marriage? (Well.. and later we get the Locke-Kant one. So clearly there are at least 3.)
Read position 1. Then 2?
The second position, which takes human freedom as its central and highest good, could be classified as “liberationist” or postmodern. Distrustful of traditional rules as intrinsically oppressive, it seeks the individual’s emancipation from all norms that might hamper the quest for spiritual and material autonomy. For the most radical liberationists, all universal norms are suspect, with the sole exception of something like a duty to “accept difference.”
Huh?
I suspect she can find people who takes this position about freedom and norms-. I know some. But, do these people advocate same sex marriage?
Aren’t these in fact the people who oppose marriage altoghether? Haven’t we met advocates of ssm who say they want to embrace social norms? In fact, isn’t that one of the points? I don’t know…. Puzzling.
Anyway, it just sort of continued in that vein!
This comment was written by lucia.Report this comment to the moderators
June 25th, 2004 at 9:18 pm
I’m pretty sure most states have provisions for this.
Yes, they do, and they vary. Some states do not allow the “putative father” (that would be the guy who’s not the husband) to challege paternity at all. Some allow the husband to challenge paternity in divorce proceedings. None require a husband to take a paternity test before he can be considered the father of his wife’s children–even if the couple used a sperm donor, even if he was out of the country for five years, even if he was left sterile in childhood from mumps.
This comment was written by mythago.Report this comment to the moderators
June 26th, 2004 at 5:26 am
>>None require a husband to take a paternity test before he can be considered the father of his wife’s children–even if the couple used a sperm donor, even if he was out of the country for five years, even if he was left sterile in childhood from mumps.
And my impression is that’s the way most people want it. Who wants to have to go to court to establish parental rights after every birth? It makes more sense to do it the other way around. If the putative parent wants to deny paternity, they could go to court! (Or, if the state doesn’t allow it, then you’re stuck!)
This comment was written by lucia.Report this comment to the moderators
June 26th, 2004 at 8:21 am
I’m sorry. I was trying to be funny and I guess it fell flat. That was my point exactly, that there’s really nothing about same-sex marriages that are so different from opposite-sex marriages that would require the laws to be rewritten to accomodate them, even when it comes to child-bearing and rearing. Cuckolding has been with us since marriage has been with us, and the law has been sculpted around that fact.
This comment was written by Amanda.Report this comment to the moderators
June 26th, 2004 at 8:24 am
Oh, and I thought that paternity was generally established by common-law custom, that is that the father is whoever the mother says it is. I’ll bet you 20 bucks they don’t check for a marriage certificate while typing up the birth certificate. Anyway, the precedent that lesbian couples can use was set long ago by straight couples who use sperm donors.
This comment was written by Amanda.Report this comment to the moderators
June 26th, 2004 at 8:40 am
>>I also love the fact that after nattering on about how essential marriage is to the survival of society, she then suggests that,
You know.. I liked the idea that we have death certificate to recognize death, and marriage certificates to recognize “generation”. (AKA birth.)
Uhmmm… what do we have birth certificates for? If the baby’s parents aren’t married do we just throw up our hands and say “Sorry, you don’t exist!”?
I also liked what appeared to be a line of reasoning that socieity does overrule biology with regard to parenthood under certain circumstances (like presumed paternity when cheatin’ wives have kids) but… that means we can’t do the same for ssm?
Very, very odd!
This comment was written by lucia.Report this comment to the moderators
June 26th, 2004 at 8:42 am
ok, i admit i didn’t make it all the way through dr. shell’s article (please remind me, should i ever take a poli sci course at boston college, to make sure she’s not the instructor), but here’s my take:
This comment was written by newswriter.1. no one has ever suggested that a church (synagogue, mosque, coven, whatever) should have to perform or even recognise any particular marriage. the union is a piece of paper from a government. the ceremony takes place whereever. the idea of a gay couple being able to marry is one of being permitted to get that piece of paper and ALL and i do mean ALL of the government benefits that come with it. personally, i could care less about what any particular religion thinks about it. they can have whatever rules they want, but they should not decide how the rest of the us live. now, if we want to talk about abolishing marriage altogether, that’s a whole nother matter.
2. for the longest time marriages were about securing fortunes and were generally arranged by one man for his daughter.
and 3. huh?
lucia, you got that one right on the head.
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June 26th, 2004 at 9:56 am
I’ll bet you 20 bucks they don’t check for a marriage certificate while typing up the birth certificate.
I’ll take that $20, please. PayPal is fine.
Seriously, you can lie and tell the State that you’re married when you’re not (perjury? what’s that?), but good luck if you try to actually rely on that lie. For, say, child support, or other parental rights. States have specific requirements for when an unmarried father’s paternity is established.
I know you were making a joke, but I thought it worth mentioning the point, because a lot of people don’t understand that paternity automagically goes with marriage in a way it otherwise doesn’t.
This comment was written by mythago.Report this comment to the moderators
June 26th, 2004 at 11:14 am
Well… they don’t ask to see the marriage certificate in Illinois because… at least when I married (in 1984) they didn’t automatically send you one. You can pay an additional fee to get a piece of paper, but otherwise, the marriage is recorded, and that’s pretty much it. So, if I had a kid (which, as it happens, I can’t) I wouldn’t be able to show a marriage certificate!
One of the odd things about Dr. Shell’s suggestion that we create civil unions which are similar to marriage but without the assumption of paternity (or parenthood) is that such unions are not in the interest of the state or the child.
The states interest in assumed paternity is this: Both parents are then legally responsible for the care and feeding of the kid! The state doesn’t have to “prove” anything– they just are. Hey, if there is a third fall back person, who sues and proves they are responsible, not a problem! The state *still* doesn’t have to collect taxes and pay for that kid!
So.. what’s the benefit to society of civil unions stripped of this assumption? A few people don’t have to deal with cognitive dissonance associated with forcing a non-biological parent to be legally responsible?
That’s an advantage??
It is a very puzzling suggestion.
This comment was written by lucia.Report this comment to the moderators
June 26th, 2004 at 11:43 am
So.. what’s the benefit to society of civil unions stripped of this assumption?
People like Shell don’t have to have their comfort zones disturbed. (I call this the ‘cake topper’ opposition to same-sex marriage; the idea of two brides or two grooms is disturbing to some people’s order of How Things Ought to Be, and while they don’t much care who gets tax breaks or shares health insurance, they want their pretty picture intact.)
This comment was written by mythago.Report this comment to the moderators
June 26th, 2004 at 3:11 pm
Actually, I have run across another, more serious, liberal case against gay marriage that I find deeply disturbing. These people want to take marriage out of the law entirely and claim “separation of church and state” as their justification, despite the fact that marriage has existed in every human society, for thousands of years before Christ and in atheist societies in the modern world.
Their actual agenda seems to be to introduce marriage alternatives, normalise cohabitation and eliminate the legal system’s ability to settle divorces; most of them, upon close questioning, are anti-marriage and consider it a ‘patriarchal institution’.
This comment was written by ataniell93.Report this comment to the moderators
June 26th, 2004 at 3:29 pm
Yes. There are people who are against marriage altogether. Interestingly enough, I have met both radical -left anti marriage people and radical right anti marriage people! (The right wing anti marriage argument is that if you take the marriage out of the hands of the government, then no one can force anyone to accept a type they don’t like!)
That said: it makes no sense to describe either right or left wing argument of an “anti-marriage” advocate and call the argument some sort of a pro- xxx-marriage advocacy.
This comment was written by lucia.Report this comment to the moderators
June 26th, 2004 at 3:31 pm
I thought that paternity was generally established by common-law custom, that is that the father is whoever the mother says it is.
There was a case in the UK a few years ago where a woman was pregnant by her long-term partner and he died before the baby was born. When she came to register the birth, the registrar put Father: Unknown since a man can only be registered as a baby’s father in his absence if he’s married to the mother. So the father can only be whoever the mother says if they’re married or if he’s physically present when the birth is registered. (I’m not sure whether the law was changed in the wake of that case or if it still holds.)
This comment was written by Nick Kiddle.Report this comment to the moderators
June 26th, 2004 at 3:41 pm
When I lived in Iowa, I remember reading about a state program to get fathers of kids born to unmarried women to acknowledge paternity. Man cannot be forced to assume legal or financial responsibility for a kid on the say so of the mother. (If they could be forced to be financially responsible just because the mom said so, at least a few wily women would list Bill Gates as the father of their kids.)
Of course, the woman can list him, and then sue. She can force him to be legally responsible if she proves he is the father!
This comment was written by lucia.Report this comment to the moderators
June 26th, 2004 at 3:50 pm
I am one of those dangerous liberals who would favor removing the word “marriage” from the legal sphere for heterosexuals and homosexuals, replacing it with “civil union” but retaining all current rights and responsibilities. The argument is basically one of strict separation of church and state.
The government concern with “marriage” is as a legal entity, a specialized and very broad contract between two individuals. The government has no business evaluating the morals of said individuals, nor does it have the right to tell churches who may be married and who may not be married.
The church has no business regulating the legal contractual aspects of “marriage” and other aspects of family law and inheritance. The Catholic Church, or an Orthodox Jewish husband with support of Orthodox rabbinate, cannot forbid its members getting a civil divorce with civil distribution of child custody and of common property. The Church, or rabbinical opinion, can only ban the individual(s) involved from the religious community. The religious bodies might demand that active members obey certain guidelines for property distribution, etc, but they ought not to be given the power to compel civil authority to enforce religious prescriptions. That way lies sharia law, with unequal inheritance rights of women (acknowledging that the Muslims were the first to ensure that women got at least some inheritance), inability of women to keep custody of children, inability fo women to initiate divorce unless husband has failed to consummate, and a host of other law that conflicts with secular common law, Jewish family law, Hindu family law, etc. Just take a look at India to see how contentious things can get when religious family law is declared to be enforceable by the secular state.
The one possible exception to the non-infringement on church prerogative is concerning minors, who in any case can be protected by statutory rape laws and laws forbidding legal contracts including civil “marriage”. So if some Mormons, Hindus, Muslims, or animists (to mention some religions in which arranged child marriage is practiced in some locations) decide to marry two minor children by an religious ceremony, I don’t know if that is properly regulated - but the minor kids better not have sex or have property exchanged on their behalf (aka dowry or bride-price) - and the kids better be able to affirm, deny, or postpone any legal civil action regarding the proposed marriage upon reaching their majorities.
BTW, Shell’s article was poorly written and poorly argued - and she doesn’t have the excuse of tossing it off as a blogpost either.
This comment was written by NancyP.Report this comment to the moderators
June 27th, 2004 at 9:12 am
replacing it with “civil union” but retaining all current rights and responsibilities
How do you propose to do that? It’s not simply a matter of a Presidential Proclamation saying “Okay, everybody get out your laws, cross out ‘marriage’ and write in ‘civil union’.”
This comment was written by mythago.Report this comment to the moderators
June 27th, 2004 at 9:15 am
Nancy P. I’ve actually heard similar arguments about the separation of church and state on both the left and the right!
Luckily, Americans do permit people to enter civil marriages through a non-religious civil ceremony. The actual legal status is unaffected by the civil ceremony.
We could do it like the French– where people who want to enter sacramental marriages get married civilly first, and then get married in a church. It’s a little inconvenient, since you need to run around to two ceremonies. (A whole extra 2 hours out of your life! LOL!)
Their method does communicate the idea that the couple who also marries at church is making two separate pacts. One is sacred; the other is civil. The civil one is the only one that counts in courts. The sacred one is similar to baptism, communion, first communion, bar mitzvah or any other religious ceremony. It’s between you and your religion.
This comment was written by lucia.Report this comment to the moderators
June 27th, 2004 at 9:18 am
>>The actual legal status is unaffected by the civil ceremony.
Ooppss. Replace “civil” with “religious”! LOL!
This comment was written by lucia.Report this comment to the moderators
June 27th, 2004 at 1:07 pm
That’s not exactly true. Generally, the religious ceremony is performed by someone who additionally has the civil authority to perform civil marriages.
I can’t imagine why it would be better to complicate things by saying “No, we won’t allow your religious official to also sign your marriage license, you have to get a court clerk to do it.”
This comment was written by mythago.Report this comment to the moderators
June 27th, 2004 at 2:13 pm
Yes– in the US, we give priest and rabbis’s etc. the additional civil authority. What I mean is, your marriage is just as legal if it is performed by a judge and you have no religious ceremony. (Actually sticking the wrong word in the sentence didn’t make things exactly clear!)
I’m not sure it’s a advantage to do it the French way. The only concievable advantage is reminding people that civil and religious marriage are different things and you may be doing both.
Is it worth the extra 2 hours on the wedding day to actually have two ceremonies? No one thinks so on their actual wedding day! It’s frantic enough.
I was an exchange student in France, and when we told the French we had the abbreviated method, some thought OUR method was better. Some thought theirs was.
This comment was written by lucia.Report this comment to the moderators
June 27th, 2004 at 3:23 pm
I think my point behind the joke still has a bit of validity, in that usually the mother’s word is trusted at the hospital regarding the father and only becomes an issue if it’s challenged later. Which, even then, the original claim of paternity holds up until a judge decides otherwise, doesn’t it?
This comment was written by Amanda.I can see it being an issue if said father isn’t there to claim his right. But if a man and a woman are at the delivery and he says he’s her husband and she concurs, I doubt they go to much effort to prove it.
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June 28th, 2004 at 5:43 am
Yes. Unless someone disputes something later, people take the mother and father’s word for the identity of the father.
This comment was written by lucia.Report this comment to the moderators
June 28th, 2004 at 6:08 am
in that usually the mother’s word is trusted at the hospital regarding the father and only becomes an issue if it’s challenged later
Perhaps some states’ laws permit a ‘putative father’ to be on the birth certificate unless he complains. I recommend you visit those states to have your children, and put Bill Gates down as the father. ;)
Other states require some kind of verification or consent of paternity before they will list a man as the father on an official document, like the birth certificate. This might be the father’s assent, or it might be a paternity acknowledement, which is a legal document where the putative father, um, acknowledges his paternity.
When I had children while not married to their father, we couldn’t even get his name on the unofficial HOSPITAL certificate until we’d received a form from the State, signed it and had it notarized, and returned it to the records division.
This comment was written by mythago.Report this comment to the moderators
June 28th, 2004 at 8:52 pm
the essay was a bit thick, but i followed it ok (except the goat sacrific bit.) It made me go back to one of my main points in this discussion -what exactly is you think you will get from gay marriage that you won’t get from a well drafted partnership agreement and a handfasting ceremony? [i was trying to type marriage, almost ended up with ‘gay mirage’, which i should run and trademark.] It’s not that there aren’t answers, but i’d like to hear them. I think a point of her essay is that the gay marriage crowd expects to get a sense of legitimacy, which won’t happen, and then people will be disappointed. Or maybe the legitimacy just has to wait a generation.
This comment was written by arbitraryaardvark.At the last marriage i went to, the marriage license asked [] white []black - i can’t think what they hell they think they need that for.
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June 29th, 2004 at 3:46 am
Legal civil marriage provides several things that an elaborately crafted partnership agreement can’t:
1) There are rights and priveleges which are attached to marriage that can’t be gained by contract, because they are priveleges provided by the state or by official institutions which can’t be bound by individual contract. For example (and others have developed extensive lists of these), you can’t make a contract to give your partner spousal survivor benefits if you are a police officer. You can’t write a contract that will make adoption services recognize that your partnership is committed and intended to be permanent. You may or may not be able to make a contract to give your partner visitation rights at a hospital, but it would be far simpler to be able to say “He’s my husband,” than to say “Here’s the contract in which he says I should be able to visit him if he is ever in a coma, even though his parents don’t like me.” While people have been fighting one by one for these rights and priveleges, they have also been fighting for the right to enter into the finely wrought contract that society has designed for exactly this purpose.
2) It is way simpler to get married than it is to spend a day with a lawyer working out every possible situation where it would be useful to have marriage equivalent rights. It is also way simpler for society to work with the single type of contract (marriage) than with the plethora of individual contracts that individuals might develop to hand create their marriage-like arrangments: “No, no, he gets to visit in the hospital, but he doesn’t get first say of whether to turn my life support off, but he does get my social security spousal survivors benefits, but not my police spousal survivors benefits, since I wasn’t on the force when we wrote the contract and we never got to modifying it,” vs. “Yes, we’re married.”
3) State recognition doesn’t force you or Shell or Tushnet to respect or honor anyone’s marriage, but it does force institutions to honor them as law. I think most of us figure that that will probably have a gradual effect on most people in the society, and that it won’t make it all that much harder to break down the hard-shell homophobes. I think (and I may well be wrong) that simply having the discussion has probably changed some people’s hearts.
This comment was written by Charles.Report this comment to the moderators
June 29th, 2004 at 5:42 am
>>what exactly is you think you will get from gay marriage that you won’t get from a well drafted partnership agreement and a handfasting ceremony?
Well… part of what you get is you don’t need to craft a well drafted parternship agreement. That’s an important plus for many, many people!
Aside from that, even with a well drafted partnership agreement, that doesn’t affect taxes, many employee benefits etc.
In anycase, if ssm becomes legal, some people will still have the option of some sort of contractual agreements if they so wish. Heterosexuals can enter some kinds right now. They don’t. That suggests they think they “get something” out of marriage.
This comment was written by lucia.Report this comment to the moderators
June 29th, 2004 at 8:39 am
Charles, thanks for taking my concerns seriously and responding. I’ve been in the situation of my gf calling the hospital and them not telling her i was there, because she wasn’t formally my spouse. I don’t agree with all of what you wrote, but, good answer.
This comment was written by arbitraryaardvark.Report this comment to the moderators
June 29th, 2004 at 10:36 am
Contracts are simply not as effective. The only way to determine what a contract really means is to sue; that’s not true of marriage, because there’s already a legal consensus as to what the marriage contract means.
To add to what Charles and Lucia said, this is an anecdote from Armed Liberal that I often think of when this question comes up:
Contracts - however ironclad - are only as good as your ability to sustain a lawsuit. When you or your loved one is dying in the hospital, who has the money or the psychic energy for a lawsuit? Marriage - even a sham marriage to a lesbian friend - actually settles the question.
This comment was written by Ampersand.Report this comment to the moderators
June 30th, 2004 at 7:09 pm
moving horror story of asset mismanagement - i won’t choose to share my own. in the above case marriage -didn’t- accomplish his objectives. sham marriages especially are open to endless litigation. indiana has its first contested gay divorce going on. but to answer my own question, i’ve realized green cards might be an example of something marriage confers that agreements don’t.
This comment was written by arbitraryaardvark.i don’t know enough about immigration law to know if you can get your boyfriend into the country with a guardianship or co-ownership of a limited liabilty company or some such thing.
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June 30th, 2004 at 7:20 pm
what exactly is you think you will get from gay marriage that you won’t get from a well drafted partnership agreement and a handfasting ceremony?
If you REALLY want, I can go into lawyer mode and give you the long list of benefits that are difficult or impossible to obtain without legal marriage. The simplest one is “doesn’t have to pay lawyers to write up a contract”.
This comment was written by mythago.Report this comment to the moderators
July 2nd, 2004 at 10:35 am
I LOVED that article! It reminded me of the Criterion a University of Chicago conservative journal that has a wonderful mix of pretentiousness and insanity that makes it the only University of Chicago publication I regularly read. It has articles like “Reclaiming Alcibiades: Metrosexuality and Empire” and the like. I’m well-familiar with the “gay marriage is a step on the slippery slope to polygamy” argument, but the “gay marriage is a step on the slippery slope to turning dead people into lamp shades” argument is something new under the sun. Congratulations, Susan Shell!
This comment was written by Julian Elson.Report this comment to the moderators
July 6th, 2004 at 9:02 am
Dare I associate myself with the University of Chicago after the last comment? ;) Just kidding. But seriously, Shell’s essay seems to boil down to convoluted essentialist thinking.
If, like Shell, a person has an unchangeable absolute mindset where ‘marriage’ = ‘man’ + ‘woman’, and no other cognitive possibilities exist, then no argument pro same sex marriage can ever be convincing enough.
Her marriages-and-funerals analogy was rather unintentionally funny. If it is as nonsensical in her view for two men or two women to be married as it is for a living person to attend their own “funeral,” I think she needs a semantic reality check.
Dead is dead, for the most part, no matter what the law, contracts or public opinion have to say on the matter. One needn’t have a funeral or a death certificate to be, in fact, deceased - as we know, a person can be quite dead regardless of any external observation.
In contrast, a person (or couple) is not “married” unless the law or the church - by conract, covenant, what have you - says they are. “Marriage” is no an essential state of being than “divorce,” unlike “living” or “dead.”
I think a really important point is the one Amp mentioned a few comments back: “Contracts - however ironclad - are only as good as your ability to sustain a lawsuit. When you or your loved one is dying in the hospital, who has the money or the psychic energy for a lawsuit?” Very well said.
This comment was written by Lenka.Report this comment to the moderators
July 6th, 2004 at 10:07 am
If it is as nonsensical in her view for two men or two women to be married as it is for a living person to attend their own “funeral,” I think she needs a semantic reality check.
Clearly, her analogy makes no sense.
If SSM were literally impossible, as attending your own funeral is, Dr. Shell would not need to write an article to explain why we should not enact laws to permit SSM. No one needs to write a long article explaining why we should forbid people from attending their own funerals and explaining why. Nor does anyone need to write an article explaining why the Alabama legislature can’t write a law and actually cause pi to equal 3. (Seen Snopes.com.)
This comment was written by lucia.Report this comment to the moderators
July 6th, 2004 at 1:55 pm
If SSM were literally impossible, as attending your own funeral is…
I think her point is not that it’s literally impossible. Rather that if you threw a party and declared it to be your funeral, your saying so would not make it a funeral. The analogy still leaves quite a lot to be desired, but it’s not that bad.
If anyone’s interested in my take on Shell’s essay, you can read it here.
This comment was written by Nick Kiddle.Report this comment to the moderators
July 6th, 2004 at 2:41 pm
You’re right Nick, I’d forgotten she put it that way. The “lampshade” comment right after the party as funeral image that distracted me and help me mis-remember!
I also thought Shell’s use of two factions made no sense. There are clearly more than two factions– and I don’t believe the two she picked are even dominant factions. That’s why I kept saying “huh?” after nearly every paragraph.
BTW– I love your introduction of the Caucasian Chalk Circle to discuss adoption. I was thinking about that play the other day– in terms of presumed maternity. When I saw the play performed by students at U of I (Illinois) the adoptive mother part was played by an African American, the biological mother and father were white. That casting emphasizes the importance of maternal self sacrifice nuturing and loving to being the “real” mother.
This comment was written by lucia.Report this comment to the moderators
February 9th, 2005 at 10:45 pm
Contrary to what many here say (including those who admit to not having read the entire piece), the analogy of treating “dead people like lampshades” makes a great deal of sense–Dr. Shell uses it to illustrate the function (she acknowledges there are many ) of marriage tied most inextricably to Lockean/Kantian liberalism (i.e., true liberalism, as opposed to the postmodernism that often masquerades as liberalism), which is that a marriage contract assumes that both parties to it are responsible for any child generated by either one of them while under the contract.
As Shell points out, it would be a sick world if children could be randomly distributed, without proper consent of their biological parents, to individuals who did not create them. A gay man or a lesbian will never create a child that will be assumed, by default, to be the property of his or her partner–custody will always require that a third party forfeit his or her parental rights of his or her own volition. This is a rule that has no exceptions, now or ever, and as a rule that continues to stand the test of time it bears no comparison to the (duly noted) exception of infertile heterosexual relationships to the rule of natural generation. If a society decides that marriages should no longer reflect this “fact of life,” this is not a liberal consequence, but rather a postmodern one.
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February 10th, 2005 at 4:31 am
Just a point of information. In NYS, an unmarried father must sign an affidavit accepting paternity before he can be listed on the baby’s birth certificate. There is no mom’s say so.
This comment was written by Silverside.Report this comment to the moderators
February 10th, 2005 at 10:55 am
I’m not quite sure what your point is. I am sure that NYS would not reject the unmarried father’s claim without good reason, and if he were married to the mother, he would not need to sign an affadavit (which is Dr. Shell’s point). I am familiar with the case in California in which a lesbian’s partner was decided to be the parent of the child, but even in this case the father either implicitly or explicitly forfeited his claims. In any event, the point is that any law that would give default status of parent (that is, entirely and primarily against the will of the biological parent, barring unfit status) to anyone other than the biological parent would be illiberal.
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February 10th, 2005 at 10:59 am
I’m also not sure why anyone would find the “human lampshades” analogy amusing, even if one disagrees with is, as it appears to be a direct reference to Ilse Koch’s gruesome experiments with dead Jews at concentration camps during World War II.
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