In this brief article, I will explain how the principled argument advanced by Raskopf has no place in legal decisions concerning gay marriage. I will show that, despite his claims that this argument exists in an amoral realm, this argument is in fact strongly influenced by moral thinking. Finally, and perhaps most importantly, I will do this without making an argument about “respect for persons” or a “homosexual’s right to exist.” Before I do this though, I’d like to offer a disclaimer of sorts. Although I do not agree with them, I believe Raskopf and others who hold his beliefs are entitled to whatever opinions they may hold regarding gay marriage and homosexuality. That said, I simply cannot accept the argument that these opinions should find expression in the laws regulating marriage in the United States.
Despite being written by someone who takes exception to the reduction of carefully crafted arguments, the aforementioned article reduces and simplifies marriage in a way that can be criticized for its incompleteness. Can procreation really be the defining essence of marriage? What happened to love? Raskopf writes, “As the unmistakable telos of human sexuality is the act of begetting, there is only one ‘sexuality’ in the finite sense of the word: The sexuality which is capable of producing children.” Perhaps I’m mistaken, but it’s my understanding and experience that, nine times out of 10, when people have sex they want to avoid begetting a child. Where, then, does that leave human sexuality in a realm of passion and desire? In a dorm room on a drunken Saturday night? Positing procreation as the purpose of sex inevitably results in rules of sex. These rules of sex would regulate, among other things, promiscuity, gendered sex, sexual orientation and monogamy, and would stem from moral, “natural” conceptions of sex. To say that the “unmistakable telos of human sexuality is the act of begetting” and that, therefore, there can only be one true sexuality, is to invoke these rules of sex to cast judgment on sexuality that does not conform to these rules. Instead of delineating marriage as a space for the rearing of children, a definition of marriage relying on procreative sex defines marriage as a space solely for heterosexual sex.
Further advancing procreation as the most important aspect of marriage, Raskopf continues, “At the core of marriage must be an understanding of the nature of sexuality, strictly speaking, for the purpose of marriage is to provide a morally suitable framework for the rearing of children.” If not through invoking moral judgment, how can the “nature of sexuality” be tied to a morally suitable framework for children? I understand this argument to be advancing the idea that homosexuals cannot provide a suitable environment in which to raise children. But if marriage is about rearing children, shouldn’t divorce law reflect that understanding? It doesn’t. Marriages can be ended at any point, regardless of the existence of any children that may have resulted from the union. If marriage is about rearing children, why don’t civil marriages end after children grow older and move out of this structure? Quite simply, marriage is not about children. Marriage is a relationship between two individuals, not two individuals and their offspring, and to regulate marriage on the basis of procreation and children denies the long history of individual rights protected by the laws of the United States. Regardless of the sexual orientation of those who wish to be married, in a secular society, marriage must be understood as the union of two individuals. By tying together marriage, “the nature of sexuality” and the rearing of children, isn’t Raskopf again offering a comment on the nature of sexuality itself? Because governments are premised on the principles of liberal democracy-principles that respect the value of diversity and pluralism and cannot be in the business of positing a national morality or a sense of the good-“the nature of sexuality” cannot find manifestation in law.
Now, forget everything I’ve just written for a second, and assume that marriage is indeed about procreation and the rearing of children. With ever-increasing medical technology, gay men and lesbians are more capable than ever of being parents. Given the fact that many gays and lesbians do have children, shouldn’t these children reap the benefits of marriage as a “morally suitable framework” in which to grow, learn and be loved? Raskopf writes, “Ultimately, opposition to gay marriage does not turn on any judgments about homosexuals as people or about the legitimacy of homosexuality, but rather is born of the incongruity between homosexuality and marriage.” Because gays can in fact be parents, Raskopf contradicts his argument that marriage is based on the rearing of children. If marriage is truly about children, then to deny marriage to homosexual parents is a blatant disapproval of homosexuality. If marriage is about procreation, then there can be no “incongruity” between homosexuality and marriage. However, if marriage is about heterosexual rules of sex and moral procreation, then I suppose, unfortunately, many do find a large incongruity between gays and marriage. Yet, to make these rules of sex and moral judgments the law violates the secular principles upon which this country was founded.
In her opinion in Goodridge v. Department of Public Health (the case decided by the Massachusetts Supreme Judicial Court in November of 2003 that declared the denial of marriage permits to same-sex couples unconstitutional), Chief Justice Margaret Marshall also understood that heterosexual procreation could not be the defining essence of marriage. Marshall wrote, “Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family … While it is certainly true that many, perhaps most, married couples have children together, it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.”