Marriage: Gender and Conjoined Twins

[Sisk, Gregory C.]

As a very brief answer, no I don't think so, that is, I don't references to
transgender or inoperable conjoined twins are at all telling on the question
of whether marriage should be re-defined.  As a crucial preliminary matter,
I don't think it much advances any argument to point to the outlier kinds of
matter and then suggest that a legal regime should be constructed around it.
Only by starting from the extreme scenario or the unusual exception would
one be able to suggest that gender is a biologically faulty concept, when of
course it is a fundamental biological concept and integral to the
perpetuation of the species.  Without gender, there is no reproduction; it
is as simple and basic as that.  (When I think about whether one believes in
the biological fact of gender, it reminded me of the old story about the
English gentleman who was asked if he believed in infant baptism and
responded:  "Believe in it, I've seen it done!")

The institution of marriage is founded upon that simple biological fact --
that a heterosexual union is pregnant (pun intended) with the possibility of
creating life.  Marriage is not (or at least has not been), as my colleague
Teresa Collett recently described it, a mere "love license."  The state has
no business formalizing or recognizing deep friendships, loving adult
relationships, etc.  Marriage instead has been child-oriented, based upon
the general proposition that a man and a woman joined together in a sexual
union are likely to produce children.  Reinventing marriage as an
affirmation of adult affections turns it away from that child-orientation.

Having said that, herewith some thoughts about the two problems:  For the
transgender person, the biological answer is simple -- the gender of the
birth certificate, which in turn should reflect the gender that genetics
confirm -- should control.  While unusual cases do arise -- very rarely --
in which a newborn appears to exhibit physical evidences of both genders, as
I understand it a genetic examination should confirm the answer.

As for the conjoined twins example, all I can say is:  Come on!  Surely no
one would suggest that any legal rule -- whether it is ownership of
property, eligibility for governmental benefits, limitations on search and
seizure for criminal purposes, etc., much less marriage, should turn on this
question.

Even if one disagrees on these particular point, I still insist that however
one comes out on the application of the law to the idiosyncratic, such as
the conjoined twins case, tells us little or nothing about the larger
issues.

Greg Sisk


Gregory Sisk
Professor of Law
University of St. Thomas School of Law (Minneapolis)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcsisk at stthomas.edu
http://personal2.stthomas.edu/GCSISK/sisk.html


-----Original Message-----
From: Francisco Martin [mailto:ricenter at igc.org] 
Sent: Monday, March 15, 2004 2:31 PM
To: conlawprof at lists.ucla.edu
Subject: Marriage: Gender and Conjoined Twins

A few weeks and months ago, Prof. Levinson and I asked about transgendered
persons marrying.  No one ever responded to this question.  If marriage is
a fundamental right, how can transgendered (or inter-sexed) persons marry
under a legal regime that allows only heterosexual marriage?  For those
opposed to gay marriage (e.g., Profs. Duncan, Kmiec), how do you all answer
this question?

And, here's another question.  In the case of inoperable conjoined twins,
can they even marry under a legal regime that disallows polygamy?  This is
not an unheard of question.  I believe that 21 states refused to marry the
conjoined sisters, Violet and Daisy Hilton.

Isn't the idea of heterosexual marriage based on a biologically faulty
conception of gender and personhood?

Francisco Forrest Martin

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