SAME SEX MARRIAGE

THE GREAT DIVIDE

by Margaret Somerville

Margaret Somerville is Samuel Gale Professor of Law, Professor in the Faculty of Medicine, and Founding Director of the Centre for Medicine, Ethics and Law at McGill University, Montreal. She authored The Ethical Canary: Science, Society and the Human Spirit and Death Talk: The Case Against Euthanasia and Physician-Assisted Suicide; has edited Do We Care? Renewing Canada's Commitment to Health and co-edited Transdisciplinarity: reCreating Integrated Knowledge. Professor Somerville regularly consults, nationally and internationally, to a wide variety of bodies including governments and NGO’s, especially regarding public policy, and has served on many editorial boards, advisory boards and boards of directors. In 2003 she became the first recipient of the UNESCO Avicenna Prize for Ethics in Science. This article originally appeared in the Montreal Gazette.

 

PROCREATION, POLYGAMY AND SAME-SEX MARRIAGE

Many people on both sides of the same-sex marriage debate reject the idea there is any connection between legalizing same-sex marriage and the possible opening up of polygamy.

For example, National Post columnist Andrew Coyne wrote on Jan. 22: "The two are entirely separable issues. The one is about whether the general legal preference for monogamy may be reserved to heterosexuals, or whether it must be extended to homosexuals. The other is about whether the preference for monogamy itself is permissible . . . The essence of marriage, at least as far as the law is concerned, is monogamy - and not, as others argue, procreation . . . Nothing in the legal definition of marriage says anything about children . . . Adultery is ground for divorce. Infertility is not."

But is monogamy a purely arbitrary choice on the law's part or is it based on some deeper reality about marriage? Does and should marriage have anything to do with procreation? Does disconnecting marriage from procreation, as same-sex marriage will do, make polygamy more likely? Why is adultery ground for divorce and not, in many (but not all) societies, infertility? Is it correct the law on marriage has nothing to do with children?

To deal with the last question first: Article 16 of the Universal Declaration of Human Rights provides "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family." In other words, the right to marry encompasses children, so legally marriage does have something to do with procreation. And what that something is will be changed by same-sex marriage. Marriage will no longer institutionalize, symbolize and, thereby, establish children's rights to be reared by a mother and father, preferably their own biological parents.

Likewise, classically the law regarded adultery as ground for divorce for procreative reasons. The courts ruled the marriage covenant was a promise not to surrender one's reproductive capacity to any person of the opposite sex - that is, have sexual intercourse with someone of the opposite sex -- other than one's spouse. To do so was the most serious breach of the marriage covenant and ground for divorce. The same was not true of infertility.

And, contrary to what same-sex marriage advocates argue, infertility, or a choice not to have children, in individual cases does not contravene, as same-sex marriage does, the general level symbolism of an inherently procreative relationship that marriage between a man and a woman establishes.

So the question of whether marriage has anything to do with procreation is central to the same-sex marriage debate in many ways, not least because it is linked to the further question of whether it is legally actionable discrimination to restrict the definition of marriage to the union of one man and one woman; one's view about the role of procreation in defining marriage affects one's view about discrimination in excluding same-sex couples.

Those who support same-sex marriage argue marriage has nothing to do with procreation, rather marriage is about publicly declared and acknowledged love and commitment and, therefore, it is discrimination to exclude same-sex couples. Canadian courts have largely accepted their view. If they are correct about the nonexistent role of procreation in marriage, then they are right that excluding same-sex couples from marriage is discrimination. But note, again, that conclusion depends on marriage having nothing to do with procreation.

And that's where those who oppose same-sex marriage disagree. They believe marriage is the principal societal institution that symbolizes, protects and nurtures the inherently procreative relationship between a man and a woman, that is, the primary relationship through which life is transmitted to the next generation and within which children are nurtured and reared. In other words, marriage is, and has always been across millennia and every type of society, a cultural institution based on a biological reality, that of procreation.

The fact many marriages fail, and fail to protect children to the extent one would wish, does not negate the procreative element of marriage or children's and society's need for its aspirational, symbolic and practical functions in this respect. In contrast same-sex marriage severs the link between procreation and marriage and thereby does negate those functions. That is the reason many people who oppose same-sex marriage do so, and not because they are anti-gay or see discrimination on the basis of sexual orientation as acceptable. Consistently with their position in this respect, they are in favour of civil unions that do not affect the procreative element of marriage.

Eliminating procreation as a fundamental feature of marriage also affects the nature of same-sex marriage debate. It means the debate can be structured, as it has been, to allow for only two possibilities: One is either both for same-sex marriage and against discrimination on the basis of sexual orientation, or both against same-sex marriage and for discrimination on the basis of sexual orientation, there are no other choices.

In other words, abolishing the link between marriage and procreation allows the establishment of a necessary link between opposing same-sex marriage and discrimination. If marriage has nothing to do with recognizing the inherently procreative relationship between a man and a woman, and is only about publicly recognizing people's love and commitment to each other, then the analysis is correct it is discrimination to exclude same-sex relationships.

And eliminating procreation from marriage raises other possibilities. For instance, the laws against consanguineous marriage -- marrying a close relative -- could also be challenged if marriage has nothing to do with procreation.

And that leads us to the polygamy issue. The reason same-sex marriage opens up the possibility of polygamy is once marriage is detached from the biological reality of the basic inherently procreative relationship of one man and one woman, there is no longer any inherent reason to limit it to two people whether of the same or opposite sex.

Once that biological reality is removed as an essential feature, marriage can become whatever we choose to define it as. In other words, if marriage has nothing to do with symbolizing the basic procreative relationship between one man and one woman, but only with public recognition of people's mutual love and commitment, why shouldn't three or more adults, just as much as two, have their love and commitment publicly recognized? And if people in same-sex relationships may do that, why not opposite sex ones?

Ironically, traditional polygamous marriage had a lot to do with procreation and it does not negate the procreative symbolism of marriage, although there are other powerful reasons to prohibit it. To the extent that one function of marriage in relation to procreation is to allow children to identify their biological parents and vice-versa, with polygyny (one man and several wives) children can still know who their biological mother and father are (at least they could prior to assisted reproductive technologies and donated gametes, and assuming no adultery - but that latter assumption also applies to monogamous marriage); but with polyandry (one woman and many husbands) children cannot, in general, know the identity of their male parent (although today DNA testing could come to the rescue). Might that be one small reason among many larger ones explaining why polygyny has been much more common than polyandry?

But allowing polygyny and not polyandry would be to discriminate against women and we certainly don't want that.