DOMA and Religion -Reply

[Jim Maule]

richard duncan <rduncan at UNLINFO.UNL.EDU> writes:

> If they found the bones of Jesus tomorrow, I would  still believe that
> the essence of marriage is its recognition of a unique community defined by
> sexual complementarity. Secular justifications for preferring
> dual-gender marriage (while tolerating other kinds of relationships)
> include:
>
> 1) public morality (i.e. a moral preference for dual-gender unions).

What is the response to the question "what morality is there that
isn't grounded in a 'theology' and that provides a justification
for mandating (not preferring) dual-gender unions?"

> 2) encouraging a link between childbirth and marriage (i.e.
> encouraging heterosexual unions and therefore sexual acts of the
> procreative type to take place within a stable and protective
> institution).

This one is weak, Rick. We don't mandate that married male-female
couples have children. This point is the underpinning of an
requirement that parents of children be married and that unmarried
people not be permitted to have children.

> 3) advancement of the widely shared belief that it is in the best
> interest of children to be raised in a home that includes both a
> father and a mother (see Lynn Wardle's seminal article "The Potential
> Impact of Homosexual Parenting On Children," 1997 U.Ill. L.Rev. 833).

This one underpins prohibiting adoption by same-gender persons and
prohibiting adoption by unmarried persons. It also would, to borrow
the slippery slope argument, mandate that widows and widowers get
remarried ASAP. It also would prohibit divorce (and even separation)
if there are minor children (which poses a problem if one or the
other parent is a threat to the wellbeing of those children).

If the state has a right to terminate parental rights, how does that
square with the proposed justification? The answer, I think, is that
there has to be an exception. One exception leads to two leads to
three....

> 4) the educative effects of changing the paradigm of marriage.

Well, Rick, they could make same-gender marriages permissible in all
50 states, the territories and D.C., and it wouldn't change the goals
of those who seek spouses of the opposite gender. Letting Casey Martin
ride a golf cart hasn't changed my determination that I can't golf
and a cart won't help....

> 5)the slippery slope (or to quote a proponent of same-sex marriage,
> David Chambers: once the state ceases to conceive of marriage as a
> relationship between one man and one woman, "the state may become more
> conducive to units of three or more (all of which, of course, include
> at least two persons of the same sex) and to units composed of two
> people of the same sex but who are bound by friendship alone." Once
> marriage opens up to include any number of people and any kind of
> committed relationship, it will cease to have any special significance
> or particular meaning.

Part of this is a strong argument; part is silly. What is wrong with
"units of two people of the same sex but who are bound by friendship
alone"? We've had them for centuries. They are healthy and good for
society. If they choose to be economic partners, why not?

The notion of multiple-partner marriages raises some interesting
secular concerns (aside from theological issues). The more persons in
the "marriage" the more likely that there would be discord, that
there would be increased demands on the judicial system to resolve
the consequences of "divorce," that there would be greater
difficulties in determining repsonsibility for domestic obligations
to the state (ok, who gets to be on the joint return?). These aren't
insurmountable but they require some serious thought. Of course, all
of these concerns suggest prohibitions against polygamy, etc. (which,
oddly, finds support in the sacred foundation of at least two major
religions in this country (to say nothing of having children by
"unmarried" servants....)).

Of course, in some ways the most significant threat to the "special
significance or particular meaning" of marriage is divorce or perhaps
what could be called "turnover." But, then again, having multiple
children doesn't reduce the special significance or particular
meaning held for each of them as they arrive.....

Now that I've stirred up all sorts of hornets (see: :-) ), I'll sit
back and watch.....


Jim Maule
Professor of Law
Villanova University School of Law
Villanova, PA 19085
maule at law.vill.edu
http://www.cilp.org/~maule
(610) 519 - 7135