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the case against “Same-sex marriage”
Margaret A. Somerville
AM, FRSC, A.u.A (pharm.), LL.B.
(hons),
D.C.L., LL.D. (hons. caus.)
A Brief Submitted to
The Standing Committee on Justice and Human Rights
final version
Montréal, Québec
April 29, 2022
McGill Centre for
Medicine, Ethics and Law
Copyright@ 2003 Margaret A. Somerville
Not to be copied or cited without permission of the author
Table of
contents
1. establishing context
2. Marriage as culture
3. Reproductive
decision-making
v Intense individualism…
v Adult-centred reproductive decision-making…
v Reprogenetic technologies…
4. Mutual respect
5. attributing Homophobia
6. Use of law
7. Social experimentation
8. Discrimination
Conclusion
1. establishing context
I want, first, to
outline briefly the context in which my comments on same-sex marriage are
grounded, because in this debate context is definitely not neutral and is not
the same for everyone. As this committee
has heard, many people who oppose extending the definition of marriage to include
same-sex couples do so on religious grounds or because of moral objections to
homosexuality. They are not the bases of my arguments. Rather, my arguments against same-sex
marriage are secularly based and, to the extent that they involve morals and values,
these are grounded in ethics not religion.
To summarize:
v I oppose discrimination on basis of sexual
orientation, whether against homosexuals or heterosexuals.
v I believe that civil partnerships open to both
opposite-sex and same-sex couples should be legally recognized and that the
partners, whether opposite-sex or same-sex, are entitled to the same benefits
and protection of the law.
v But I do not believe that we should change the
definition of marriage to include same-sex couples. My reasons go
to the nature of marriage as the societal institution that represents,
symbolizes and protects the inherently reproductive human relationship. I believe that society needs such an
institution.
2. Marriage as culture
Marriage is, and has
been for millennia, the institution that forms and upholds for society, the
cultural and social values and symbols related to procreation. That is, it establishes the values that
govern the transmission of human life to the next generation and the nurturing
of that life in the basic societal unit, the family. Through marriage our
society marks out the relationship of two people who will together transmit
human life to the next generation and nurture and protect that life. By
institutionalizing the relationship that has the inherent capacity to transmit
life — that between a man and a woman — marriage symbolizes and engenders
respect for the transmission of human life.
(What such respect now requires has become an unprecedented issue in
light of recent advances in reprogenetic technology. I discuss that shortly.)
To change the
definition of marriage to include same-sex couples would destroy its capacity
to function in the ways outlined above, because it could no longer represent
the inherently procreative relationship of opposite-sex pair-bonding. It would be to change the essence and nature
of marriage as the principal societal institution establishing the norms that
govern procreation. Marriage involves
public recognition of the spouses’ relationship and commitment to each
other. But that recognition is for the
purpose of institutionalizing the procreative relationship in order to govern
the transmission of human life and to protect and promote the well-being of the
family that results. It is not a
recognition of the relationship just for its own sake or for the sake of the
partners to the marriage, as it would necessarily become were marriage to be
extended to include same-sex couples.
Reproduction is the
fundamental occurrence on which, ultimately, the future of human life depends.
That is the primary reason why marriage is important to society. In our highly
individualistic societies, we tend to look only at its importance to
individuals. That is necessary, but not
sufficient in deciding on the future of marriage.
People advocating
same-sex marriage argue that we should accept that the primary purpose of
marriage is to give social and public recognition to an intimate relationship
between two people, and, therefore, to exclude same-sex couples is
discrimination. They are correct if the
primary purpose of marriage is to protect an intimate pair-bond. But they are not correct if its primary
purpose is to protect the inherently procreative relationship of opposite-sex
pair-bonding or to protect an intimate relationship for the purposes of its
procreative potential. When marriage is
limited to opposite-sex couples, there is no need to choose between these
purposes, because they are compatible with each other and promote the same goal. The same is not true if marriage is extended
to include same-sex couples. That would
necessarily eliminate marriage’s role in symbolizing and protecting the
procreative relationship. We now need
the procreative symbolism of marriage more than in past, because of new
technoscience possibilities for transmitting life, if we believe that,
ethically, there should be limits on the use of these technologies.
Culture is what marks
us as human; it is what distinguishes us and allows us to distinguish ourselves
from other animals and, in the future, from intelligent machines. In the past, we used religion as an important
forum and force in the foundation of culture - we did so by finding shared
values through religion. That is not possible in a secular society; one result
is that it makes it more difficult to find consensus on values.
To form a society, we
must create a societal-cultural paradigm — the collection of values,
principles, attitudes, beliefs, and myths, the “shared story” through which we
find values and meaning in life, as both individuals and society. In establishing a societal-cultural paradigm
all human societies have focused on the two great events of every human life:
birth
and death. Marriage is a central
part of the culture — values, attitudes, beliefs — that surrounds birth. We require a culture related to birth in a
secular society, at least as much as in a religious one, and must establish it
through secular means. That is one
reason why the legal recognition of marriage is important.
One argument in favour
of same-sex marriage is that the culture of marriage has changed over the years
and that recognizing same-sex marriage is just another change. A common example given is the change in the
status of the woman partner, in that marriage is now seen as a union of
equals. But that change goes to a
collateral feature of marriage, not its essential nature or essence as
recognizing same-sex marriage would. In
short, these two changes are not analogous; rather, they are fundamentally different
in kind.
Advocates of same-sex
marriage also argue that restricting marriage to opposite-sex couples based on
society’s need for an institution that symbolizes the inherently procreative
relationship between a man and a woman, means that opposite-sex couples who
cannot or do not want to have children should be excluded from marriage, or,
more extremely, that only a man and a woman who produce a child should be
allowed to marry.
Marriage between opposite-sex partners symbolizes,
however, the reproductive potential that exists, at a general level, between a
man and a woman. Even if a particular man and woman cannot or do not want to
have a child, their getting married does not damage this general symbolism. The
reproductive potential of opposite-sex couples is assumed at a general level
and is not investigated in individual cases.
To do otherwise would be a serious and unjustifiable breach of
privacy. It is also sometimes argued
that the absence of a reproductive potential is obvious “on the face of the
record” when a woman well past the age of child-bearing enters a marriage and
yet we recognize such marriages. But
again these marriages do not damage the reproductive symbolism of marriage in
the way that same-sex marriages would.
Indeed, they continue this symbolism at the grandparent level and,
therefore, across the generations.
Marriage’s role in
upholding respect for the transmission of human life — which is the first event
in procreation — is of unusual importance at present. We are facing unprecedented
challenges to that respect because of new technoscience that opens up
unprecedented modes of transmission of life. That is another reason why
marriage should remain limited to opposite-sex couples. Without it, we would have no institution that
establishes a social-sexual ecology of human reproduction and symbolizes
respect for the transmission of human life through sexual reproduction, as
compared, for example, through asexual replication (cloning).
Recognizing that a
fundamental purpose of marriage is to engender respect for the transmission of
human life provides a corollary insight: Excluding same-sex couples from
marriage is not related to those people’s homosexual orientation, or to them as
individuals, or to the worth of their relationships. Rather, the exclusion of their relationship
is related to the fact that it is not inherently procreative, and, therefore,
if it is encompassed within marriage, marriage cannot institutionalize and
symbolize respect for the transmission of life.
To recognize same-sex marriage (which is to be distinguished from
same-sex partnerships that do not raise this problem) would unavoidably change
and eliminate this function of marriage.
The alternative view is
that new reproductive technoscience means that same-sex couples will be able to
reproduce as a couple, so they should be included in marriage as the
institution that institutionalizes, recognizes and protects procreative
relationships. I discuss this argument in the next section.
The inherently
procreative relationship institutionalized in marriage is fundamental to
society and requires recognition as such. Marriage carries important norms and
values, “memes” (long standing units of deep cultural information passed on
from generation to generation) related to reproduction. Marriage makes present in the present, the
deep collective human memory concerning the norms and values surrounding
reproduction. Extending marriage to
include same-sex couples (or de-legislating marriage, which I discuss shortly)
would seriously harm all of these societal level functions of the institution
of marriage.
3. Reproductive
decision-making
v Intense individualism…
Our
societies manifest “intense individualism” — including “intense moral
individualism” (Frances Fukyama), “…my preferences are my moral values”. As a result, decision making about “life”
(reproduction) and “death” is seen as purely private. Pursuant to this view, those decisions are
regarded as no one else’s business and certainly not the state’s, especially to
interfere with through law. This view
would favour the state getting out of the “marriage business”, one of the
options on your committee’s agenda.
But, as Samuel Johnson
said, marriage involves a third party beyond the man and the woman — “Society
[and] if it be considered as a vow — God”.
In short, marriage is not just a matter of private decision-making, it
is also of concern to society. That
becomes most apparent when a marriage breaks down and ends up in the divorce
courts.
If society has a valid
interest in marriage, as I believe it does, it must remain involved in marriage
through the law.
v Adult-centred reproductive decision-making…
Our
societies have also adopted adult-centred as compared with child-centred
reproductive decision-making. Child-centred
means, among other requirements, that we should work from a
presumption that, if at all possible, children have a valid claim to be
raised by their own biological parents.
We must consider the ethics of intentionally creating a situation that
is otherwise: It requires justification.
There
is an ethical difference between individuals choosing to create such a
situation and society authorizing or facilitating it. While society would have ethical obligations
not to interfere with the freedom of individuals in relation to reproduction
(subject to restrictions on the use of reproductive technologies, discussed
below), it also has obligations not to facilitate the creation of situations
that are not in the “best interests” of children. In short, the compliance of society in
helping to create non-traditional families in which children will be raised is
not an ethically neutral act.
One common response to
the position I outline above, by those advocating same-sex marriage and
families, is to point out the deficiencies of marriage. The issue is not, however, whether all or
most opposite-sex couples attain the ideals of marriage in relation to
fulfilling the needs of the children they produce. Neither is the issue whether
marriage is a perfect institution — it is not.
It is, rather, whether we should work from a basic presumption that
children need a mother and a father, preferably their own biological parents. I
believe they do. The issue is, also,
whether society would be worse off without the aspirational ideals established
by traditional marriage. I believe it
would be.
v Reprogenetic technologies…
The combination of
adult-centred decision-making and intense individualism, together with
reproductive technology can result in a claim of rights to “absolute
reproductive freedom” (eg. See John Robertson,
In this respect the
judgement of Blair, RSJ, in Halpern et al
v.
It is relevant to note,
first, that in doing so, the judge recognizes that a fundamental feature of
marriage is related to procreation. And,
second, to the extent that the judge’s ruling implies that people have a right
to “absolute reproductive freedom”, it would mean that there would be duties
not to interfere with access to reproductive technologies to make reproduction
possible or, for instance, with two men married to each other, having access to
a surrogate mother. There would, also, probably be a duty to provide access to
the means for “collaborative non-coital reproduction” (procreation through the
use of reproductive technologies). After
all, if exclusion of same-sex couples from marriage is found to be
discrimination by way of comparison with opposite-sex couples, not providing
same-sex couples with the means for procreation — that is, excluding them from
procreating with each other — when procreation is possible between opposite-sex
couples, is a related discrimination.
Indeed, the Nova Scotia Court of Appeal has held that failing to provide
an infertile couple with access to reproductive technology was discrimination
under section 15 of the Canadian Charter
of Rights and Freedoms, although justified, in that particular case, under
Section 1 of the Charter (Cameron v Nova Scotia Attorney General).
These technologies open
up a wide range of possibilities for having children. Does a duty of non-interference with their
use mean, for example, that creating a child by cloning, or from two ova, two
sperm, or multiple genetic parents is ethically acceptable? Could homosexual couples argue that it is
discrimination to prohibit them from creating children between them by using
reprogenetic technologies in whatever way they saw fit? It merits noting that Bill C-13, the Assisted Human Reproduction Act, as
recently amended, would support this argument:
Principles
sec. 2…
(e) persons who seek
to undergo assisted reproduction procedures must not be discriminated against,
including on the basis of their sexual orientation or marital status;
New reprogenetic
technoscience confronts us with questions no other humans have had to address,
because in the past the only mode of transmission of human life was sexual
reproduction in vivo: What is
required for respect for mode of transmission of human life to the next
generation? And what is required for respect for the children who would result
from the use of reprogenetic technologies?
4. Mutual respect
The reason for
excluding same-sex couples from marriage matters: If the reason for denying
same-sex marriage is that we have no respect for homosexuals and their
relationships, or want to give the message that homosexuality is wrong, then,
the exclusion of same-sex couples from marriage is not ethically acceptable
from the perspective of respect for homosexuals and their relationships. It is also discrimination.
On the
other hand, if the reason is to keep the very nature, essence and substance of
marriage intact, and that essence is to protect the inherently procreative
relationship, then excluding same-sex couples from marriage is ethically
acceptable from the perspective of respect for them and their
relationships. And such a refusal is not
discrimination.
Respect for others’
religious beliefs in a multi-cultural society can raise complex issues. Some
people object to same-sex marriage on the basis of their religious
beliefs. These beliefs are often
profound and the people who hold them see a complex interplay in marriage between
its voluntary formation, religious sanction, social legitimation and natural
origin. Even if we do not agree with
these beliefs, indeed even more so if we do not, we need to understand what
they are in order to understand the impact on the people who hold them of
legally recognizing same-sex marriage.
We must also likewise,
take into account the impact on same-sex couples of refusing to recognize their
relationships as marriage. We are in a
situation of competing sorrows or harms.
We must ask which
approach to marriage best accommodates mutual respect. Both sides in this debate must recognize that
they can only demand respect from their opponents if they give it; that is, if
respect is to be present at all, it will only be so in a context of mutual
respect. To the extent that we can avoid transgressing people’s religious
beliefs, even though we do not agree with them, we should not transgress them
out of respect for the people who hold them, not out of respect for those
beliefs. The same is true for people who
oppose homosexuality on moral grounds, in relation to their having respect for
homosexuals, if not for their beliefs. Ethics requires us to take the least
invasive, least restrictive alternative, reasonably available and likely to be
effective in achieving a justified goal. Maintaining traditional marriage and
legally recognizing same-sex partnerships fulfils that ethical requirement.
Note, this same
accommodation of respect for beliefs in the formation of public policy, would not apply to beliefs, based on religion,
about the wrongfulness of homosexuality. While such beliefs may be privately
held, they are not acceptable as the basis for public policy decision-making in
a secular society, if only because the harm of recognizing such beliefs far
outweighs the harm of not doing so. That
is the reason why opposing same-sex marriage on the basis that it involves
recognizing a homosexual relationship, is not valid, but opposition based on
such recognition necessarily destroying the essence of marriage is a valid
reason. There is a major difference between not destroying the essence of
marriage for people who will enter into that institution and whose religious
beliefs mean that recognizing same-sex marriage would destroy it, and
recognizing, at any public policy level, the same people’s anti-homosexual
beliefs. The latter is unacceptable,
because it directly denigrates homosexuals, rather than seeking a justified
goal (maintaining marriage); and because others’ sexual orientation, unlike the
recognition of same-sex marriage, in no way directly affects the people who
regard homosexuality as morally wrong.
5. attributing Homophobia
Being against same-sex
marriage is frequently alleged by proponents of same-sex marriage to be proof
of homophobia (See “Same-sex hearings rife with ‘gay- bashing,’ critic says”, Globe and Mail, 11 March, 2003, A6). A
useful comparison can be made with people who take the view that being against
infant male circumcision (IMC) is proof of anti-Semitism. (I, personally, have
been subject to both sets of allegations in the public square.)
The strategy adopted in
both cases is to shame those who are against same-sex marriage or IMC into
silence. The choice of language and
framing of the issues is carefully crafted to achieve this result. (See William
Eskridge, who has articulated important insights in this respect, through his
analysis of the techniques used by identity-based social movements to place
courts in the position that they see their only alternatives in reaching a decision
as being either to find discrimination or to believe that in not doing so they
would be approving of discrimination and themselves engaging in it. In the same
vein, see Halpern et al v. Canada and arguments considered by the
judges.)
This strategy also
involves using “ad hominem” arguments, that
is, derogatorily labelling those who
oppose same-sex marriage as homophobic or as religious (which is seen by some
as a derogatory label), and claiming, therefore, their arguments against
same-sex marriage should not be given any weight. The substance of these arguments, however, is
not addressed.
6. Use of law
The use of law can
never be neutral, whether we are enacting, changing or repealing it. We use law in post-modern, secular societies,
such as Canada, to challenge or uphold our most important societal values.
(Whereas, in the past, our moral and values discussions used to take place in
religion, now they take place in our legislatures and courts. One way to regard
our Parliament, legislatures and highest courts is as the “secular cathedrals”
of our society.)
Same-sex marriage cases
are already in the Canadian courts and the issue is before this committee. We
cannot avoid the decisions of judges and Parliament regarding same-sex marriage
affecting the values related to marriage — either to uphold or change
them.
One of the options that
has been proposed, of Parliament repealing the laws on marriage and abandoning
the area of marriage, would not be a neutral act. It would necessarily change the values and
symbolism associated with marriage. We
legislate about matters associated with our most important societal values,
therefore, de-legislating marriage would be to detract from its importance and
the values associated with it. Whether
or not we agree with all of the provisions in the Assisted Human Reproduction Bill (Bill C-13), mentioned previously,
its enactment recognizes that there is a need — both practical and symbolic —
to legislate in relation to reproduction. It would be paradoxical, if, at the
same time, we were to de-legislate marriage.
At the individual
level, many young people who see no problems with sexual relationships outside
marriage or living together before marriage, get married either before having
children or if pregnancy or birth occurs.
That fact shows the current importance of the role of marriage with
respect to the values governing procreation.
We can argue that this reality makes maintaining the institution of
marriage and the values and symbolism associated with it, more necessary and
more important than in the past, and that requires maintaining marriage as a
legal construct.
If marriage were not
available as a societal institution, but only as a religious (quasi-private)
one, to mark out and mark off the intrinsically procreative relationship from
other types of relationship, there would be no societally sanctioned way these
people could symbolize for themselves, others close to them, and society that
their relationship had changed because they were becoming or had become parents.
That would be particularly true for people who were not religious.
But what about
homosexuals who bring children into their relationship, shouldn’t those adults
have access to marriage? This is the
most powerful argument, in my view, for recognizing same-sex marriage, but I do
not believe it justifies extending marriage to same-sex couples.
First, marriage
institutionalizes and symbolizes for society the inherently procreative
relationship. It cannot do that if it is
changed to include same-sex couples.
Second, the joint
reproductive incapacity of a same-sex couple must not be addressed through
reproductive technologies. I believe that a child has a right not to be created
from the genetic patrimony of two men or two women, or by cloning, or from multiple
genetic parents. Therefore, same-sex
relationships should not be included within an institution that symbolizes an
inherently procreative relationship.
Third, bringing
children into a same-sex relationship should not be seen as within the norm, but
rather, as an exception to it. Although
it is considered a radical view by some people, and often seen as politically
incorrect, I believe that a child needs a mother and a father and, if possible
and unless there are good reasons to the contrary, preferably its own
biological mother and father as its raising parents. (Adopted children’s search
for their birth parents and current moves to give children born through
reproductive technologies, using donated gametes, access to the gamete donors’
identity, show a deep human need to know our biological family origins.)
Recognizing same-sex marriage would make bringing children into a same-sex
relationship part of the norm, rather than the exception.
We should recognize
same-sex relationships and legally protect them and any children involved, but
not by recognizing the same-sex couples’ relationship as marriage.
Finally, within the
context of the legal issues related to recognizing same-sex marriage, we must
ask what the private international law impact of changing the law would be on
all Canadian marriages, not just same-sex ones.
7. Social experimentation
It is relevant to
consider the rules governing experimentation, in deciding whether to redefine
marriage to include same-sex couples.
The rules governing any experimentation are especially stringent when
vulnerable populations — that is, children — and those unable to consent for
themselves — that is, children — are involved.
The burden of proof is on those wanting to conduct the experiment, to
show that it is reasonably safe to do so. In comparison, if we structure the
claim to same-sex marriage as a right not to be discriminated against, then the
person allegedly discriminating has the burden of proof to show that their
actions are justified.
Burdens of proof are not
neutral in terms of the outcome of decision-making. In cases of equal doubt as to which decision
should be taken, the burden of proof will favour the person who does not carry
it, that is, the person with the burden of proof will lose his or her
claim. Consequently, how the question of
whether to include same-sex couples in marriage is structured, is not neutral
with respect to the decision outcome.
8. Discrimination
Homosexuals are not
excluded from marriage, but their intimate pair-bonding relationships are. It
is argued that is discrimination on the basis of sexual orientation. If that is correct, we must consider whether
the discrimination is justified. I believe
it is.
One way the
justification can be articulated, is in terms of the doctrine of “double
effect”: The primary intent in restricting marriage to opposite sex couples is
to maintain marriage as the institution that fulfils society’s need to protect
the inherently procreative relationship and its functions for society, and is not
to exclude homosexual relationships because they are homosexual. The discrimination involved in the exclusion
is a secondary effect which is not desired but unavoidable, and it is justified
or excused by the primary purpose which otherwise cannot be realized.
A useful comparison can
be made with the discrimination involved in affirmative action. That shows that sometimes discrimination and
the harm it involves, can be justified when it is to achieve a greater good
that cannot otherwise be achieved.
It is also argued by
those advocating same-sex marriage, that excluding same-sex couples from
marriage is the same act of discrimination as prohibiting interracial marriage,
which has rightly been recognized as a serious breach of human rights. That argument is not correct. Because an interracial marriage between a man
and a woman does symbolize the procreative relationship, its prohibition is
based on racial discrimination which is wrong. In contrast, not extending the
definition of marriage to include same-sex couples, is not based on the sexual
orientation of the partners, but the absence of a feature of their relationship
which is an essential feature of marriage.
Conclusion
In conclusion, society
needs marriage to establish cultural meaning, symbolism and moral values around
the inherently procreative relationship between a man and a woman, and thereby
protect that relationship and the children who result from it. That is more necessary than in the past, when
alternatives to sexual reproduction were not available. Redefining marriage to include same-sex
couples would affect its cultural meaning and function and, in doing so, damage
its ability and, thereby, society’s capacity, to protect the inherently procreative
relationship and the children who result from it, whether those children’s’
future sexual orientation proves to be homosexual or heterosexual.