Marriage: Gender and Conjoined Twins

Ilya Somin isomin at fas.harvard.edu
Mon Mar 15 17:14:23 PST 2004


I agree with Greg Sisk that we should not base our marriage policy on
extremely rare cases like conjoined twins. But what about much more common
cases such as heterosexual couples that are either 1) genetically unable
to bear children, 2) old enough that childbearing is impossible or highly
unlikely (e.g. b/c menopause has occurred), or 3) simply have no intention
of having any children?

If marriage must be "child-oriented," should not some or all of the above
also be denied marriage rights? I set aside the possibility of adoption
because, of course, same-sex couples can adopt also (as can single people
for that matter).

Ilya Somin



On Mon, 15 Mar 2004, Sisk, Gregory C. wrote:

> 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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