A Family Like Any Other?

[Note:  I am travelling a bit and so will be sporadic.  Should have said that earlier, of course.  I know I need to get to comments and will do so as I can.   Sorry.]

No, not really your average family.   Here’s a story (the words “heart-warming” are hard to resist) about a gay male couple–Steven and Roger Ham– with 12 adopted kids–all adopted out of foster care.  

It’s one of those stories where you just have to wonder–could anyone say this is a bad thing?  Even for those who prize genetic link above all else, that option wasn’t going to work for these kids.   There’s no hypothetical here–many of these kids had the experience of being separated from siblings and bounced household to household.    Because they were adopted they now have a stable and permanent home. 

I know it’s a long story but it illustrates so many points.   For instance, because of the laws of Arizona, ten of the kids are legally related to only one of the men.   (Two were adopted from Washington State, which did allow them to adopt jointly.) 

That leaves ten kids without a host of protections/advantages–like being eligible for social security benefits in the event the parent who is a legal stranger dies or becomes disabled.  And that’s after the Hams have taken a number of legal steps to protect the familial relationships established here.   (One that is quite striking–Roger changed his last name to “Ham” so that everyone in the family has the same last name.)   The article has a tidy summary of the legal problems: 

Married couples who adopt children don’t have to take such precautions. With only one legal parent, children in gay households are not entitled to health and Social Security benefits, inheritance rights or child support from the other parent. If a gay couple splits up, only the legal parent has custody rights

 And of course, the reason why it they cannot both adopt?  Because Arizona won’t allow two men to adopt–after all, they are not a married couple and marriage is best.   (Of course, these men would like to be a married couple, but that’s another story.)  

It’s also interesting to note the disconnect between the law on a grand and abstract scale (as enacted by the legislature) and the law in operation (as seen by the social workers.)   It’s far easier to generalize at the abstract level of legislation.   You can just say married different-sex couples make better parents (whether you have evidence to back it up or not).  

But on the ground, things aren’t so neat.   It might be that some of the parents the kids were born to were married and heterosexual–but they weren’t good parents to these children.  (No one would say that all married heterosexual couples make good parents.)  This particular unmarried gay couple seem to make great parents.   For the social workers, its the individual kids and prospective parents that matter.   They do not have the luxury of generalization when they have real children with real needs to see to.  And so they have brought 42 kids to the Hams for foster care over the years. 

It’s sad to see that Arizona has just enacted a law giving a preference to married heterosexual couples for adoption.   It’s not that gay and lesbian couples and single people won’t be foster or adoptive parents in Arizona anymore–they clearly will because no one thinks there are enough married heterosexual couples out there to fill the needs.   This being so what the preference amounts to is a public assertion that single parents and same-sex couples are second-rate.    

Maybe the legislature thinks this is so, viewing the situation from their lofty perch.  Maybe it’s all just politics.  But from the ground–from the perspective of kids and their families–it’s awfully hard for me to say the Hams are a second rate family.

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60 responses to “A Family Like Any Other?

  1. marilynn huff

    I think states have an interest in making sure that children do not become wards of the state (foster children where the alternative to orphanages is foster families paid by the state to provide care) Now I do believe that every citizen including the parents who lost custody pay into that emergency fund with their tax dollars even if they only work sporadically because they purcase gas and food and other services which are taxed, but ultimately its best for children to be privately supported by their parents. Everyone has two parents who created them and we need to start there by obligating them both to support their children to adulthood. DNA may not make great parents but the state can’t very well grade parents before holding them financially responsible its a matter of practicality. If a person has offspring the state holds them financially accountable unless the children appear to be in grave danger in their care.
    When both parents loose custody the state tries to find another permanent home with two sources of income to support the child. I think in that regard its a mistake to let 1 person adopt a child because there is no fall back for the child if that person dies or becomes disabled. It places the child at an unnecessary disadvantage. So I think states should look for two people to adopt a child I see no reason why they have to be legally married, because they could divorce the day after the adoption is finalized. The state needs to concern itself with finding two sources of financial support for a child. Can two married people do that? Yes. Can two single people do that? Yes. Can one single person do that? No.
    The state needs to do background checks on whoever is going to be adopting the child and so long as they both pass background checks I see no benefit to the state in worrying what sex the two people are or whether or not they are married.

    • You’ve raised a number of reasons why requiring marriage as a pre-condition for adoption is problematic. I don’t agree with you about preferring two parents, but if there are going to be two parents, it’s surely better if those two people are in a stable relationship. As you point out, marriage isn’t necessarily an indicator of stability–particularly not in an age of no-fault divorce. The family profiled here certainly seems to me to be a two-parent family even though the law doesn’t recognize that for ten of the kids.

      My assumption (and indeed, my hope) is that the social workers examine the whole household when doing their home studies, not just the one person who can take legal status.

      • Marilynn Huff

        you don’t agree with me about needing two parents in adoption. Am I correct in believing this is because you don’t believe there (should be) two parents at birth? I know why you feel that way. I guess there is no sense in me trying to convince you out of it

  2. Yes, this is a heartwarming story.
    I think 2 people adopting together must be either married or close relatives, something that indicates thats they are likely to remain together for the long haul, so they won’t end up subjecting the kids to yet another upheaval.
    Therefore I would like to see a marriage-like status made available for gay folks in a marriage-like relationship.

    • I wonder if it is common to assess the stability of the relationship of a couple who plan to adopt? It seems to me you might want to do this whether the couple is in a legally recognized relationship or not. It’s fairly easy to dissolve a marriage or a domestic partnership so simple legal status isn’t an assurance of stability.

      Where a couple could enter into some sort of recognized relationship and chooses not to, this might be a topic social workers should be careful to explore. But where the couple cannot enter into any sort of legally recognized relationship (as is the case with the Hams in Arizona) it makes little sense to ask them why they haven’t done so.

      All in all it makes no sense to me to allow one member of a gay couple (but not the other) to adopt. There’s no possible benefit to that arrangment.

      • Marilynn Huff

        Well here’s the problem with assessing the aparent stability of a relationship – exactly what kind of relationship are we talking about? Romantic? Romantic by whose standards? Why couldnt my best girlfriend and I adopt if we were living in the same house together? Lets say we we even own the property together as an investment….would it matter that we did not share a bedroom? Hell why not two spinsters? Of all the various kinds of relationships – romantic ones in my unprofessional opinion seem to be the fastest to fall apart. Judging someones fitness as a parent based on whether or not they have a satisfied romantic partner is just dumb. You can be blissfully in love and be a complete idiot when it comes to paying proper attention to a child. Thats fine if your making your own baby not so fine if the state is giving you someone else’s baby to take care of – there is just a higher standard of care at the outset when your assigning a child to a new home, its not luck of the draw like in nature. There is a chance to do it right when your picking people to raise a child.

        • Married people and closely related people are the most likely to stay together, that’s why. That’s why while it need not be the only criteria, it should be the MINIMUM criteria.
          two friends, even good friends, are less likely to purchase property together or tie their lifestyles down to eachother for more than a few years. Friends lose touch all the time, have in periods and out periods and all.
          Look at this way Marilyn, if you hadn’t married your husband you would have probably kicked him out ages ago. But by marrying him, you had made a commitment and you stuck to it until it became impossible.

          • Do you suppose married people stay together because they are married or that people who are likely to stay together for whatever reason are also likely to get married? In other words, does marriage cause stability or does stability tend to lead to marriage? I think this is a real question and no one has good answers. When you compare unmarried couples and married couples and talk about stability you are including a very wide array of people in that first category. You are including people who want to get married but cannot get married, for example. You include couples that have made some sort of formal commitment as well as those who have not. So it’s almost inevitable that the latter (married ) will be more stable than the former, but it doesn’t turn out to tell you much.

            Just a side thought.

            • Marriage says you want to be together for the long haul Marriage is evidence that two people made a commitment to each other to be there thick and thin. I don’t know that I think married people are more stable. There are lots of single people more grounded than me, I’m horrible with money, can’t find anything ever. My biggest fear is if I get hit by a bus that strangers will see the inside of my purse like its a window into the random disorganization that is my mind.
              Adoption should be about committing to a child and frankly thinking outside the box I am confident there would be situations where two people who did not want to be married could convince me that they were both deeply committed to raising the same child. Not being committed to each other beyond being supportive of their efforts to raise the same child would not be a deal breaker for me. Parent/Child love is eternal, that committment is eternal. Nobody will ever committ to a romantic partner on the level they commit to stick it out with a kid. For Julies benefit I’ll concede to the varrying degrees of love and committment accross the board. But if love and committment could be measured The mother who loved her child more than any mother ever in the history of the planet would love her child more and be more committed to that child than the wife who loved her husband more than any other wife in the history of the planet. Hows that the gold standard of each kind of love and the stability of a mother’s love for her child dwarfs the deepest romantic love. One is beautiful and magical and the other is fierce and protective and ruthless if it has to be – nobody touches my kid there is nothing I would not do to protect her no sacrifice too great that I’d even blink before doing it – and I suck as a mom – I’m like the nickel plated tin standard of motherhood.

              • being a mom is a relationship, not a skill, not a race.

                also I wouldn’t entirely blame you. theres another person invovled, the way you describe him is that inevitable their would be some problems in the family unit that inv0lves everyone.

            • “In other words, does marriage cause stability or does stability tend to lead to marriage?”

              Interesting question Julie. I wonder if the reason I never got married is because I’m a bit flakey.

              But legally speaking, does it matter?

              • If the law says “preference for married couples” then when a court or an administrator enforces the law, it doesn’t matter why there is this preference. That’s part of the beauty of it–it’s pretty easy to check whether people are married or not married these days. But when legislators consider whether the law ought to give preference to those who are married, they ought to think about why that might be a good idea (apart from the fact that it is easy to administer.) Then the cause/effect question matters.

                And one important thing to remember about adoption–it ALWAYS invovles individual assessment of the applicant(s). This being the case the ease of figuring out whether people are married may be less important. Even if you find they are married, you still have to make the individualized assessment of stability/suitability. Which means all the marriage requirement does is weed people out, and beyond doubt, some of those who get weeded out would be grand adoptive parents.

              • No the reason you never got married is you never felt it was a risk work taking. That makes you incredibly grounded and stable.

                Honestly many women sadly put their men before their children – none of us have to look very far to know that. There are great relationships out there where husbands and wives are in love and give each other the space to be good parents to their children.

                My brother in law is a “playa for life”. I have never known another man to sleep with as many women as him hundreds in the years I’ve known him. He never got married, and that’s probably for the best, he’s not afraid of commitment, he’s just not all that deep.

          • Oi vey Kisarita 20 years of on and off and on and off – drives me nuts. I’m either still mildly in love or I’m just batsht crazy. (I did kick him out years ago but he keeps coming back every 2 years like clock work, its more than a coincidence now its just weird) I think in the old days married couples did what we do a lot, they separated but did not really remarry or anything. I’d never want my child to think of anyone else as her father. In fact if I did start dating it would be totally secret from her unless I wanted to get married again, its just a personal thing. He’s her father and he loves her and that is that – its not interchangeable and I would not want someone thinking they had authority over her. I also just would not want some strange man around my little girl – men are strange even the good ones. I’d never want to turn a blind eye.

            He does not live here (its so nice and quiet) but I have not divorced him. Besides he needs an operation. I won’t let him go through that alone. I’d take care of him. I don’t take marriage or friendship lightly. Its so rare that people will even pretend to care about each other.

        • I think it’s probably right that romantic relationships are generally less stable than other sorts of relationships. I think there are cultures (and have been in the past) that generally recognize this and do not expect romantic couples to raise children together–rather they might look to some form of clan. To us this might seem very strange, but it’s worth thinking about. All that said, I think it does make sense to care about stability, but perhaps this is just my bias–I think stability is good for kids. Maybe others disagree with that.

          • Well sure, stable enough to both want to agree to adopt the same child and have some sort of reasonable joint custody agreement arranged. I can definately see this as working say for a single person who lives alone who was acceptable as a foster parent because the child was still legally the financial responsibility of two parents I think (Julie if attempts at reunification are ongoing while a child is in foster care and either one or both parents die, does the child get the parent’s social security benefits? How about if the parents die after an adoption is finalized in foster situations. Seems a big waste of benefits to me. I digress. So here is this single spinster and her best friend also a spinster who lives around the corner, they could split up the effort and take care of this 10 or 12 year old kid. They can abide by a custody order and the child knows them both very well. What is so wrong with that 2 sources of income both dedicated to raising the child and neither with any prospect of ever being a permantent “parent type figure for a child” why can’t that work? Why is it so much more unstable than a married couple. At least those women are not likely to have an affair or cause eachother financial ruin their finances are separated, less to fight about…you see? its like the amicable divorce already occurred. The kid inherits two houses, not one, two cars, its even better than a married couple that shares everything. I’m just playing around with ideas I’m sure these words will come back to bite me. I’m thinking outside the box in I think not terribly illogical ways,

  3. To clarify: The marriage-like status, which is a status that is legally the same as marriage in all matters not related to reproduction, would allow for joint adoption because adoption does not involve reproduction.

    @ Marilyn: If a child needs a home and family and a single person is available than would you deny the child that home on the off chance of what might happen in the future? Still maybe you have a point, maybe a single person should be required to have a close relative as a backup.

    • Marilynn Huff

      If there are multitudes of couples available to adopt who can provide that two permanent sources of income no, I would not let the single person adopt. I would let single people adopt a child together even if they had virtually no relationship at all and had to split custody because that does happen in real life and that alone is not harmful to children. There is no such thing as a single mother – there is absolutely a father who is suppose to be pulling his weight and helping raise the child. If he is not doing that – he abandoned his child or the mother is guilty of deliberately preventing him from caring for his child or in rare instances she can’t find him and he’d love to care for his child if he knew he had one…the state will hunt him down like so much buffalo all she has to do is ask, so if she does not at least ask for their help – she’s a btch and is preventing him from caring for his child and the kid should grow up and resent her for it. I’ll help them out with that after I give them his address and phone number.

      Its a mater of practicality Kisarita. Not that I don’t think single people would do perfectly great and that the kids would be perfectly happy and that in all likelyhood nothing would happen to the person adopting and everything would be fine. But if you are the State and the child had two parents whose SS death benefits they could collect on and who were obligated to support them, to replace those parents with only one source of support when there are couples straight or gay or married or unmarried romantic or fully friggen fridged – you’d have to opt for the two sources of financial support or you would not be doing what was in the child and states best economic interest.

      Maybe if a single person could replicate a second income by setting up some sort of a trust fund that would emulate a second source of support.

      If I was in a position to argue it I’d find the lowest annual income per ea parent that the state would consider for the adoption of a given child (given medical conditions and what not) and show that you had enough money in the bank for 18 years of support equal to those two people. Not just that your anual income was equal to two people because you could become disabled and that would go out the window real fast and your private dissability would not be enough to care for you and your adopted kid? No that is why the state holds both parents responsible for their child. One really rich person is not as good as two pretty poor people. The fall back is missing. The argument I was going to try and make is so easy to poke holes in it just makes me look like I’d be irresponsible, naiive
      – see that’s the other thing medical benefits you’d almost have to carry 2 medical policies and double cover the child – if you loose your job, cobra to continue medical benefits for a single person I just heard is $1300 month! Add a child to that while you are looking for a job and you’ll blow through your savings. But if you lost your job and simply transferred the kid to the other adoptive parent’s medical insurance it would cost that other parent an extra $400 a month – you see there is just no way around it. Unless you are Paris Hilton it would be hard to show that your money for 1 person is as safe as money for 2.

    • Marilynn Huff

      kisarita | May 4, 2011 at 7:11 pm | Reply
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      To clarify: The marriage-like status, which is a status that is legally the same as marriage in all matters not related to reproduction, would allow for joint adoption because adoption does not involve reproduction.

      Does a husband have a right to reproduce with his wife? Or does a husband simply have a right to reproduce himself if he so chooses? A man cannot force his wife to have sex or be inseminated with his sperm to conceive a child or force her to remove her eggs for IVF to be carried by a surrogate. Reproductive freedom starts and stops withourselves just like every other personal freedom. Why is it that people opposed to recognizing a same sex marriage believe that recognizing the marriage will give the two of them some special right to reproduce with eachother – its impossible to begin with and either of them will only ever have the freedom to themselves reproduce which of course requires a member of the opposite sex.

      Look A steril husband is SPECIFICALLY EXCLUDED FROM THE PRESUMPTION OF PATERNITY extended to married couples. SPECIFICALLY EXCLUDED. So the presumption does not extend to men who are not capable of reproducing. The other laws at odds with that are for financial reasons so the kid has two sources of support and they really need to fix that because its never ok for the law to specifically accommodate a lie like that – Even simple changes to the wording that said “a man will be considered legally obligated to raise his wifes child as if it were his natural child with all the obligations and legal recognitions except that he will not be allowed to claim the unqualified title of father over a child that is not biologically his:” because it perpetuates a lie and we can’t do that. If everyone could get just exactly what they want without obviscating the biological truth from medical records I’d be so much less cranky.

      • While I think it is true that historically a sterile husband was excluded from the marital presumption it is not necessarily true today. Many states have a secondary presumption–if a married woman undergoes insemination than her husband is presumed (sometimes conclusively presumed) to be the father. That’s understood as a special variation of the marital presumption. In some states there isn’t an explicit secondary presumption, but it is understood to operate that way. This is largely so that husband and wife using third-party sperm need not go through adoption or anything like that.

        • hey we went through this Julie once- it’s not automatic, the husband has to sign a form that he voluntary assumes paternity and the wife as to sign a form agreeing to it as well. (If it was up to me would also allow for a time window of year or so in which it could be revoked if the parties split up or something- I was inspired in this direction by the Jenkins-Miller case.)
          This being said, if they failed to sign the forms the outcome would be legally the same unless one of the parties actually went to the court to prove sterility.
          I also remember a case on this very blog, form Oregon which stated specifically that a woman could not become a parent using presumption of paternity criteria but she could become a legal parent using holding out criteria.
          I suspect the holding out criteria began is because it was assumed that it was unlikely for a man to knowingly present himself as the father of some unrelated kid. So if he was holding out, then he most likely was the genetic father. So the holding out criteria may have begun as a presumption similar to the marital presumption.
          In any case I think all these laws exist because they are impossible to refute without government invasion of privacy.

    • “To clarify: The marriage-like status, which is a status that is legally the same as marriage in all matters not related to reproduction, would allow for joint adoption because adoption does not involve reproduction. ”

      kisarita, this sounds exactly like the Civil Unions I’ve been suggesting that would be defined to be “marriage minus conception rights.” Is that right? Is there a difference as you understand our proposals?

      And yes, I think one of the benefits of these CU’s would be to provide for automatic joint adoption. Certainly, it ought to be impossible for someone to adopt without their CU’d spouse consenting to them adopting (is that how marriage works too?) and they should automatically also adopt at the same time (that’s how marriage works too, right? If the adoption takes place after marriage they both adopt, as opposed to having taken place before marriage, in which case the marriage just makes a step parent who may adopt but doesn’t automatically, right?)

      • same idea.
        how about calling it a personal union/ life union or something like that, instead of a civil union which sounds beaureacratic and impersonal. Perhaps people would find it more friendly.

        • I wish people would address the idea. Julie, don’t you think they’d be a good solution? As to what they are called, for every person that thinks they should be more friendly, there is someone that thinks it’s too friendly already. I think Civil Union has already become a term that people understand, the key though is for us to get people to talk about how they should be defined. And explaining that there needs to be a legal difference in the definition, they can’t just be marriage with a different name. So maybe, yeah, maybe a new name would get people past the hangup that CU’s are marriage with the same name.

          I’ll try out Life Union and Personal Union for a while, maybe it won’t be met with immediate rejection, and people will ask “what are those?”

          • The problem here I think is akin to the problem that Marilynn and I have discussed about “parent.” “Marriage” is the gold standard. It has enormous cultural meaning. Think about when a person tells her/his parents “I’m getting married” or tells their friends. Or when someone proposes. Marriage is (and this is a rough quote from Mamma Mia, I think) the whole white cake/wedding gown thing. See the royal wedding last week.

            Telling some couples they can have all of the rights/responsibilities (and here I’m just going to say “all” for ease of conversation—I think the topic under discussion here is actually less than all) but cannot use the term “marriage” is clearly marking out those relationships as not quite of the same weight/quality/merit/whatever. It’s the classic effort at “separate but equal” but as with the separate train cars and waiting rooms and schools for African Americans, separate cannot be equal.

            I think all sides in the marriage debate actually agree on this, though they rarely say so. Obviously same-sex couples in California are not satisfied by “domestic partnership” and continue to press for the name “marriage” even though they have all the legal rights the state can grant. Equally obviously, the people opposed to the extension of access to marriage think the name “marriage” matters–else they wouldn’t continue to object to it.

            There’s a larger issue about what marriage means or what marriage is for. While each person can answer that on a personal level, it’s very hard to answer on a societal level. But if you look at the portrayal of marriage generally in our culture, I think it is often portrayed as the paramount personal relationship adults form. It’s about finding your soulmate. And when you do you form your own little world–you move away from the families you were born into. Increasingly people marry without having children (and have children without being married, but that’s another topic.) Thus, I don’t think you can say that marriage today is about having children. You could say this is a bad thing, I suppose. (Again, another topic.) Indeed, there are a number of historians who would say that civil (as opposed to religious) marriage was never about having children, which is why fertility has never been a requirement of marriage.

            • “It’s the classic effort at “separate but equal” but as with the separate train cars and waiting rooms and schools for African Americans, separate cannot be equal. ”
              I oppose the comparison. Retaining the gendered, procreative definition of marriage is not akin to the racial segregation that was once legally practiced in America. It is not separate but equal; in fact it does not separate at all. It does not separate and segregate gay folk at all from the rest of society.
              Further, perhaps you have misunderstood, John and I have agreed that marriage and same sex unions should NOT have the same legal status with regard to procreation and therefore can not have the same legal name.
              Regarding fertility as a requirement of marriage- To require such would also be a redefinition of marriage. It would redefine marriage from a social norm and expected part of the life trajectory, to a specialized, unique and individualized event. This is because infertile males and females still belong to the socially identified categories of males and females. They don’t form a separate social category.

              • I think I understand your proposal, but perhaps I was not clear. Sorry. And perhaps with that in mind I should say that what you are suggesting is “separate and unequal.” I don’t mean to say this to be disparaging, but to highlight that you are suggesting two essentially different relationships. Because they are different there is no inherent requirement they be equal and indeed, equality might be an unreasonably expectation.

                Mostly what I was trying to do there was to restate the argument for marriage access. And here is where the purpose of marriage becomes important. If the point of marriage (from the perspective of civil society) is to recognize and encourage pair-bonded romantic relationships in the hopes of stabilizing them then the sex (and the capacity for or intention of child-bearing) of the people engaged in the relationship is irrelevant. There’s any number of reasons why society might wish to stabilize and support long-term committed couples–for instance, they are more likely to care for each other (thus relieving society of the burden of caring for the incapicitated individual) and/or they are more likely to form efficient households (dividing the labor of home-making/breadwinning in a way that maximizes the productivity of the household), and so on.

                Even if the point of marriage is to create a stable situation in which to raise children, that doesn’t justify excluding same-sex couples. It’s widely agreed that same-sex couples can have children in their households and it seems increasinly clear that those children do as well as children in the households of different sex couples. Further, many people think that children do better in married than in unmarried households, in which case it seems perverse to exclude same-sex couples raising children.

                I think (and you are surely free to disagree and add more) that there are two purposes of marriage that can be advanced to support the exclusion of same-sex couples. First, if the purpose of marriage is tied to the capacity of the couple to engage in unassisted procreation or to produce offspring who are genetically related to both members of the couple, then the exclusion of same-sex couples can be justified. (But I do think this runs you into the problem of clearly infertile different sex couples.) Second, if men and women are somehow inherently different (apart from procreation) so that a same-sex couple and a different-sex couple are fundamentally different, you might be able to make the case.

                I’m not sure whether this second argument is the point your last paragraph addresses. I’m not sure I understand why it matters what social category people belong to. If marriage is about love/commitment/mutual support then what do the categories people belong to matter?

                I don’t mean to suggest that I have special insight into the purpose of marriage. That does become a critical question, I think. Many people would say thta the purpose of marriage has changed over time. Where once arranged marriages linked landed families (think Catherine of Aragon and Henry VIII), now marriage is primarily a romantic relationship that fulfills individual needs. This shift to a model premised on individual romantic satisifaction (which helps explain the wider acceptance of divorce, by the way) makes it harder to explain why some romantic couples should be excluded.

                • But we can’t give the same name to a relationship with unequal rights without stripping conception rights from everyone’s marriage. The fact is people should have a right to conceive, but only with someone of the other sex, and conceiving with someone of the same sex should be illegal, like having sex with a sibling is. An infertile couple retains the right to attempt to conceive offspring, they don’t become prohibited from attempting to conceive just because they are unable to. Again, the analogy is to siblings, not infertile couples: they are not allowed to produce offspring, whether they are able to or want to or not. Marriage would approve of them producing offspring, or at least it always has and always should. I don’t care that I don’t need that approval in order to produce offspring with someone (eligible to marry), I still want to feel the security and approval and the right to have sex and procreate when I get married, I don’t want it to be equated to the same approval and right that I’d have with someone of the same sex.

                  • I’m having a little trouble understanding the line you are proposing to draw.

                    People who are married have the right to engage in sex but it’s generally believed that people who are unmarried also have the right to engage in sex. (Various assumptions here–that sex is consensual, that the parties are adults and so on.) The sex people (married or otherwise) can choose to engage in may be procreative (the sort of sex that might produce offspring) or not (say oral sex). And indeed, a married couple can choose not to engage in sex and remain married. So on this ground I don’t see the reason to distinguish between a same-sex couple and a different sex couple.

                    I think the key lies in what you’ve called “conception rights”–but I’m not totally clear what those rights are. Is this just the right to try to concieve via vaginal intercourse? And are we talking about that as a legal right?

                    I think it is true that married different sex couples have a right to conceive via vaginal intercourse, by the way. By this I mean the state could not forbid them from doing so. But you could equally well say that all people have this right–whether married or not. I don’t think the state can prohibit anyone from trying to concieve via vaginal intercourse.

                    I don’t see why allowing same-sex couples to marry would strip conception rights from anyone. I think the key is that you want “conceiving with someone of the same sex” to be illegal. This is where I grow confused. I don’t know what “conceiving with someone of the same sex” means. If a lesbian couple jointly adopts a child is this conceiving with someone of the same sex? If one of the women uses sperm from a male friend to become pregnant with the intention that the two women will raise the child, is this conceiving with someone of the same sex?

                    Even if I accept this view, why does this mean I have to to reject access to marriage for same-sex couples. If all people, married or not, have the same right to concieve via vaginal intercourse, then letting same-sex couples marry doesn’t diminish the rights of married different sex couples. To the extent your concern with the “security and approval’ you feel is one we should take account of, I think the problem might be that those who are not married are just as entitled to procreate as those who are. Isn’t the problem unmarried heterosexual couples who feel free to procreate?

                    Or is it this–if lesbian and gay couples were allowed to married, then in order to ensure that lesbian and gay couples do not have conception rights, you would take conception rights away from all married couples? If that is the reasoning, then it takes me back to what it means to questions about what conception rights are and why it is imperative that same-sex couples not have them.

                  • “I don’t know what “conceiving with someone of the same sex” means.”

                    It means having offspring with someone of the same sex, using a lab to create artificial sperm or synthesize DNA or whatever it might take.

                    “If a lesbian couple jointly adopts a child is this conceiving with someone of the same sex? If one of the women uses sperm from a male friend to become pregnant with the intention that the two women will raise the child, is this conceiving with someone of the same sex? ”

                    No those aren’t. Adoption isn’t conception because the person was already conceived. And donor conception is not same-sex conception, it joins sperm and egg (so far anyway). And adoption and donor conception aren’t rights of marriage anyway, only conceiving together is a right of marriage.

                    It’s not merely the right to have sexual intercourse, it is the right to conceive offspring.

                    And I like to think of it as “together but unequal.”

                  • So is it fair to say that conceiving with someone of the same sex is a thing that lies in our future? No one can do that now?

                    I’m still puzzled, but I’m trying to figure out exactly what puzzles me so I can ask a good question. Perhaps this is where I am stuck–in your view, what right do married heterosexuals have that unmarried heterosexuals do not have? Unmarried heterosexuals can conceive (in fact) but are you suggesting they do not have a right to do so?

                    Sometimes people say that what has happened in modern society is that procreation and marriage have become disconnected, so that now people procreate without marriage and marry without procreation. Once you decouple the two things, it’s difficult to justify exclusion of same-sex couples. Is it the case that you are wanting to recouple them?

                  • “So is it fair to say that conceiving with someone of the same sex is a thing that lies in our future? No one can do that now?”

                    A lab could try it now. They are already making gametes from stem cells and talking about it now.

                    “Perhaps this is where I am stuck–in your view, what right do married heterosexuals have that unmarried heterosexuals do not have?”

                    The right to have sex and conceive offspring together. Unmarried couples do it without the right. Not everything that we allow people to do is a right that we have to allow people to do. We could enforce fornication laws and prohibit unmarried conception without it violating any right.

                    Marriage and procreation are not completely decoupled, in that marriage still always approves of sex and conception of offspring, and couples that are prohibited from those things, like siblings, are never allowed to marry. Same-sex couples should also be prohibited from conceiving offspring.

                  • I think it has to be clear this is your own view. I say that because I do not think the state could enforce fornication laws without running afoul of the US Constitution. There is no way a state could constitutionally criminalize unmarried conception. Indeed, one of the major changes in family law in the last quarter of the last century was the recognition that you cannot penalize children born to unmarried parents because their parents were unmarried. So from a purely legal point of view, the distinction you are suggesting won’t work. This is not to say that you cannot argue that it should be as you describe.

                  • You didn’t even acknowledge the main points, that marriage should approve and protect the conception of offspring, and that we should not approve and protect the conception of offspring to same-sex couples. I am not trying to get any state to enforce fornication laws, I am just stating that in my opinion there is no right to unmarried conception. It is quite irrelevant and tangential, indeed even if it were true that states could not prohibit unmarried conception, it would make zero difference to my point. The distinction between CU’s and marriages, and the rights of both-sex and same-sex couples, would be the conception rights, regardless of the conception rights of unmarried couples.

                  • I think I might just be missing the main point, certainly I confess to being confused. Why should marriage be reserved for those who can conceive, or perhaps for those who look like they might be able to conceive? I can understand the idea that marriage should be reserved for those who are going to raise children–not that I agree with it, but I can understand it. But that wouldn’t exclude same-sex couples. The only way you get there is by adding that they have to be raising children they conceived with their own genetic material. That’s what I don’t understand. Is this because of what you are calling conception rights?

                • Also, perhaps you’ve noticed that lots of people are very opposed to giving same-sex couples the name marriage, but are more willing to give them CU’s with most of the protections, as long as there is a way to make sure they aren’t stepping stones to marriage and aren’t just marriage in all but name. There has to be a substantial difference to get around all the state amendments.
                  Conception rights, the approval of offspring, can be that substantial difference.

                  • It is clearly true that there are a significant number of people who accept civil unions/domestic partnerships for same-sex couples but not access to marriage. That’s a good point to keep in mind. But I’m not convinced this has anything to do with conception rights and/or the approval of offspring. The states with civil unions/domestic partnerships allow lesbian and gay couples to adopt as couples or to become legal co-parents of children conceived via ART.

                    In general, the recognition of lesbian and gay people as parents has preceeded the recognition of the couple relationship, whether by civil union/domestic partnership or by marriage. Indeed, one of the main arguments for recognition of the couple relationships (one I’m not always happy about) has been the protection of the same-sex families raising children.

                  • That may be true of the state legislators, but the majority of lay people who say “yeah i support civil unions bu not marriage” don’t seem to be aware of those laws. They are sometimes shocked and disbelieving to find out about cases like the ones on this blog that involve a woman claiming presumpotn of paternity for instance.
                    Many were hard pressed to articulate exactly WHY they feel that way regarding civil unions. Perhaps some of them were even ready to accept the “bigoted” label about themselves. But I think if they heard Johns and mine’s discussion about how a civili union is and isn’t the same , they’d say “Yes, thats exactly what I meant.”

              • I think I understand your proposal, but perhaps I was not clear. Sorry. And perhaps with that in mind I should say that what you are suggesting is “separate and unequal.” I don’t mean to say this to be disparaging, but to highlight that you are suggesting two essentially different relationships. Because they are different there is no inherent requirement they be equal and indeed, equality might be an unreasonably expectation.

                Mostly what I was trying to do there was to restate the argument for marriage access. And here is where the purpose of marriage becomes important. If the point of marriage (from the perspective of civil society) is to recognize and encourage pair-bonded romantic relationships in the hopes of stabilizing them then the sex (and the capacity for or intention of child-bearing) of the people engaged in the relationship is irrelevant. There’s any number of reasons why society might wish to stabilize and support long-term committed couples–for instance, they are more likely to care for each other (thus relieving society of the burden of caring for the incapicitated individual) and/or they are more likely to form efficient households (dividing the labor of home-making/breadwinning in a way that maximizes the productivity of the household), and so on.

                Even if the point of marriage is to create a stable situation in which to raise children, that doesn’t justify excluding same-sex couples. It’s widely agreed that same-sex couples can have children in their households and it seems increasinly clear that those children do as well as children in the households of different sex couples. Further, many people think that children do better in married than in unmarried households, in which case it seems perverse to exclude same-sex couples raising children.

                I think (and you are surely free to disagree and add more) that there are two purposes of marriage that can be advanced to support the exclusion of same-sex couples. First, if the purpose of marriage is tied to the capacity of the couple to engage in unassisted procreation or to produce offspring who are genetically related to both members of the couple, then the exclusion of same-sex couples can be justified. (But I do think this runs you into the problem of clearly infertile different sex couples.) Second, if men and women are somehow inherently different (apart from procreation) so that a same-sex couple and a different-sex couple are fundamentally different, you might be able to make the case.

                I’m not sure whether this second argument is the point your last paragraph addresses. I’m not sure I understand why it matters what social category people belong to. If marriage is about love/commitment/mutual support then what do the categories people belong to matter?

                I don’t mean to suggest that I have special insight into the purpose of marriage. That does become a critical question, I think. Many people would say thta the purpose of marriage has changed over time. Where once arranged marriages linked landed families (think Catherine of Aragon and Henry VIII), now marriage is primarily a romantic relationship that fulfills individual needs. This shift to a model premised on individual romantic satisifaction (which helps explain the wider acceptance of divorce, by the way) makes it harder to explain why some romantic couples should be excluded.

                • ” I’m not sure I understand why it matters what social category people belong to. If marriage is about love/commitment/mutual support then what do the categories people belong to matter? ”

                  Excuse me for not being clear. I was responding to the argument that if marriage is about procreation, then infertile people should not be considered married. Why marriage is based on the identifiable, basic categories of male and female. Infertile people do not form a separate category of people and thus can not be excluded without erecting huge procedural barriers and qualifying and disqualifying criteria for everyone.

                  • yeah, and infertile people also retain the right to be fertile and be treated as fertile, just like everybody else. There just isn’t a category, everyone has the same right to try to procreate with their own genes, and it’s their private business what’s going on down there, in terms of their fertility. Except that it’s public what sex people are, that is an identifiable category, both through appearance and on documents. Some people just are privately infertile (transgendered people would be privately infertile) but they are still publicly a sex, with the right to procreate as that sex with someone of the other sex.

                  • So the critical thing seems to me whether we knowa particular couple cannot reproduce? If we know that, then they should not be allowed to marry? I am still not sure I understand why this should be the rule, but is this the rule you are suggesting?

                  • The critical thing is if we approve of that relationship type reproducing or not. We pay no attention to the particular individuals, we rule out some relationship types as being unethical relationships to reproduce. Siblings are a relationship type, same-sex is a relationship type.

                    All people have a right to reproduce, or rather, to marry, and all marriages have a right to reproduce. So even if we know someone is unable to reproduce, that has nothing to do with their rights.

                  • Okay, this I think I understand better. But I have a couple of questions.

                    I can guess why we should not approve of sibling reproducing. Why should we not approve of same-sex couples reproducing? It’s not just that science hasn’t gotten there yet, in your view, right? And if we approve of same-sex couples reproducing, then we should allow them to marry, yes?

                    I’m still not clear why approved reproduction should be the determinant of whether you can marry, though. Why must marriage be about approved reproduction? Why can’t it be about two people prepared to commit to each other for life etc?

                    Finally, I think saying same-sex couples are a relationship type distinct from different sex couples puts a lot of weight on gender different. The relationships of same-sex couples vary widely as do those of different sex couples. Why are they of different types? Only because you see the gender difference as defining, I think. Or because of the reproductive capacity, which loops back to your other point.

                  • “I can guess why we should not approve of sibling reproducing. Why should we not approve of same-sex couples reproducing? It’s not just that science hasn’t gotten there yet, in your view, right?”

                    Right, it would be unsustainable and unethical and bad public policy, it would open the door to all forms of human manufacture, it would destroy the basis of human equality and dignity. We should preserve natural reproduction, not allow commercial factory farming industrial genetic engineering reproduction, there is no need and too many downsides.

                    “And if we approve of same-sex couples reproducing, then we should allow them to marry, yes?”

                    Yes, those should always match. It makes no sense when they don’t match.

                    “I’m still not clear why approved reproduction should be the determinant of whether you can marry, though. Why must marriage be about approved reproduction? Why can’t it be about two people prepared to commit to each other for life etc?”

                    That would mean a married couple did not have a right to conceive, they could be prohibited from conceiving offspring. That would be a totalitarian denial of basic human rights. It is the dream of eugenicists to strip procreation rights from marriage and force undesirables to use better genes or not reproduce at all.

                    “Finally, I think saying same-sex couples are a relationship type distinct from different sex couples puts a lot of weight on gender different. The relationships of same-sex couples vary widely as do those of different sex couples. Why are they of different types?”

                    Because one is ethical reproduction and one is unethical reproduction.

                    Do you get the point of the Civil Union compromise now? Instead of insisting on same-sex couples having an equal right to reproduce as a married man and a woman have, which can’t even be done and might never be possible and threatens marriage’s conception rights, same-sex couples could get all the other rights of marriage much faster and more uniformly. What matters more right now, the families that need security, or the right to reproduce with someone of the same sex?

            • I’d like to vote more than one thumbs up here. Its very enlightening to read California code and see that consummate does not mean anything sexual at all – its essentially a financial merger. Seriously, do a word search of the word consummate throughout the California code and you’ll see the context that word is used in over and over and over. The word conjugal is used once in the Penal code and the word adultery? Could not find it at all. Apparently sex and marriage don’t really go together (but you could pretty much come to that conclusion by talking to married people straight gay or otherwise) :O

              I’m beginning to revel in my being the only person with my pro ssm pro-bio-parent position. I’m happy to have seen the two mother’s I know amicably work out their seperation by taking custody of their own biological child rather than the one they gave birth to with visitation back and forth of the other child that they did give birth to. I am sad for these women I do not believe they are named as “other parent” on the bc of their bio child. You know I chatted about these women I work with before. They are nice reasonable women, imagine being entangled in that mess, as many women now are, with a ex that you cannot stand that cannot stand you thats trying to steal your kid. OMG my heart goes out for those moms so much.

              So on this Mother’s Day I pray that a miracle finds all Mother’s unfairly separated from their children and that soon they will be reunited with them.

              —————
              Happy Mother’s Day to you too Professor Shapiro!
              M

              • Sex is implied by the word marriage; specifically by the ban on close relatives getting married. Nor would such relatives present themselves as “married” to the public even if they did not engage in sex. (Very few are the pople who would do so…)
                The concept of adultery as sex outside of marriage, also helps define marraige as a sexual relationship by implication.

                • This is probably tangential, but while monogamy is part of the ideal of marriage, it’s within the domain of the spouses to decide whether it is an important part of their particular marriage. Thus, individual married couples can decide their relationship will not be monogamous and they’re still just as married. The more important underlying issues might have to do with trust and respect rather than sex.

                  • Marilynn Huff

                    Trust and respect are not part of marriage either you can be a total disrespectful creep and still be married. Oh Julie – you are romanticising marriage too! For crying out loud. The law says nothing about trust or love or respect either. You can still be married if you have no trust no love and no respect for the person you married.

                • I apologize to Marilyn for that post. It was unkind to exploit people’s personal pain to make point that they did not intend. Julie if you are still on line can you delete that portion of mhy comment?

                  • Marilynn Huff

                    Kisarita
                    We get to know eachother here and if I share something about me to make a particular point it does not offend me if you bring it up to make another point. Its all fair game. I wear my heart on my sleeve. But Julie is absolutely correct. There is nothing in the law that requires monogamy in marriage there is no such thing as “grounds for a divorce” Monogamy is my own thing my own terms for what marriage is about – its not written down anywhere its a figment of my imagination. Along with Princes that ride white horses and children that don’t smart mouth their mothers. There is no such thing as a faithful husband.

                • Marilynn Huff

                  aldultery is not part of the law anymore kisarita. I’d call it cheating even if i were not married. And oh boy did he cheat before we were married. Cheating does not unmarry you either. Cheating is not like against the legal contract of marriage – its something I put on it not something that has ANYTHING TO DO WITH THE LAW OR MY CIVIL MARRIAGE. ITS TOTALLY IRRELLEVANT. HE CAN CHEAT ALL DAY LONG AND IT HAS NO BEARING ON WHETHER OR NOT WE ARE MARRIED. Marriage is a financial merger and has NOTHING TO DO WITH SEX OR RAISING CHILDREN. Therefore there is no reason in the world to prevent to people of the same gender from getting married. And the reason two members of the same family don’t get married is because their money is already part of the same family. Inheritance rights already exist there.

                  I swear I just feel like saying DUH! Wake up for crying out loud it has nothing to do with sex. Read the law. What yall put on marriage is in yalls own little fantasies. Read the law. Read it. Read it Read it and you will see there is nothing at all kissyface or lullabye about it. There is no reason to prevent same sex couples from getting married.

                • Marilynn Huff

                  no sex is not implied. Will you please show me where the law says sex is a required part of marriage? No? You can’t? That’s because its NOT FREAKING IMPLIED! Your imagining that.

        • Marilynn Huff

          take away the perceived right of husbands and wives to procreate
          then let everyone get married

          • Are you seriously making this suggestion? How could you possibly think that is a good idea, or that people won’t object to having their perceived right to procreate taken away?

            I think you are just stuck thinking that we have to allow same-sex couples to marry, because it is wrong or bad not to let them marry, and you just don’t want to admit you were wrong. People just shouldn’t have the same rights with either sex. People should only have the right to reproduce with someone of the other sex. And that should remain the essential right of marriage.

  4. Marilynn Huff

    Kisarita how about a new legal concept called legal Godparent a dear friend who agrees to go through the agency reviews and homestudies and be approved to adopt – who signs paperwork that goes into effect in the event of the adoptive parents death?

    Still if the legal god parent dies the kid would not be intitled to social security death benefits or to inherit unless the adoptive parent died first. Forget that then. Nope nevermind . There is nothing the same.

  5. A legal godparent is a good idea

  6. “So the critical thing seems to me whether we knowa particular couple cannot reproduce? If we know that, then they should not be allowed to marry? I am still not sure I understand why this should be the rule, but is this the rule you are suggesting?”

    No that’s not what I said; I said it’s not about the circumstances of particular couples. It’s about whether they fit into the category or not. Social institutions evolve based on generalizations. If you disregard the generalization and go for individually tailored statuses, you eventually eliminate the social institution.

    • Let’s say I agree with that for the moment. It leaves me with two problems. First, what makes a category a category? So for example, people over 80–are they a category? People over 80 as a group cannot reproduce, but perhaps that isn’t the category, maybe the category is still just different sex people? But why?

      Second, why should being in a category where you cannot reproduce on your own exclude you from marriage? This is the more fundamental point. I can see that you might contend that marriage is about raising children, but people who cannot conceive (and who are in categories where they cannot conceive) can still raise children.

      There’s another issue lurking underneath. You may say marriage is about one thing (conception rights). I may say it is about another (pair bonding). How does anyone decide which one of us is “right?” I’m not even sure I know what it means to be right in this case. Is this a question of fact? Of opinion? Is it up for majority vote?

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