Law professor Robert Vischer addresses a colleague's question about a New York Times report of a finding that gay couples have "open" relationships. (Mirror of Justice, a Catholic law blog) His colleague, Michael Perry, asked how one might argue, based on this finding, that same-sex couples should not be allowed "civil marriage." Perry invites development of another argument that same-sex marriages would harm heterosexual marriages.
According to Vischer, the argument should invoke another kind of speculative risk than the one National Review writer Heather McDonald considers. Does same-sex marriage, he asks, "represent changes to marriage beyond the gender of the participants, and if it does, are the changes likely to impede the essential social functions of marriage?" He thinks that the evidence remains open. He believe that monogamy represents an "intrinsic part" of marriage. But in 40 years, he speculates, half of all marriages might become "intentionally non-monogamous," and that would change the nature of marriage. He engages his speculation for the sake of argument, acknowledging that it's a "wild" overstatement of what the facts support. But the risk gives him pause.
What merit does an argument have that begins with a wild speculation? I am reminded of what philosopher Robert Nozick once said about the idea that tacit consent has binding effect: tacit consent "is not worth the paper it's not written on." At any rate, Vischer proposes the argument without endorsing it. But suppose the argument deserves a reply, and that sexual fidelity represents a defining characteristic of marriage. One wonders whether Vischer appreciates the present scale of marital infidelity, involving one spouse's deception in the service of "intentional non-monogamy." Even if his speculation proved right, what is it about "open" marriages that would change the institution any more than the history of infidelity has changed it already? Marriage is a malleable institution that has survived such changes as the rise of a separate legal identify for women. Wouldn't it also survive the change to a non-sexual standard of fidelity, even under Vischer's marital dystopia of the future?
At any rate, opponents of same-sex marriage consider childrearing an "essential social function of marriage." Psychologist Michael Lamb testified at the Perry trial that children of gay and lesbians would benefit if their children could marry, and that sexual orientation makes no difference in parenting. Prop. 8 proponents could produce no expert testimony to rebut Lamb. If same-sex couples could marry, they could raise their children without harm from the stigma of inferiority, advancing the very goal that their opponents attribute to marriage.
(Perry has commented on Vischer's "sketch" of an argument, and asks additional questions about it.)
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