Wednesday, March 12, 2003
I should probably just rename this blog I Read Stanley Kurtz's Stuff Religiously And Blog About It Blog. It's starting to get embarrassing.
Stanley Kurtz is distinguished for being one of the few, if not the only, commentator willing to come out strongly against gay marriage, to the point of amending the U.S. Constitution to prevent it, without starting from a religious premise of any kind. He had a running (and very civil) argument with Andrew Sullivan about the topic some time ago, an argument in which Andrew Sullivan came out by far the worse. I've had a running argument with him (and Sullivan) myself (see, for example, here, here, here and here) on the topic.
So, in his latest piece on the topic, Kurtz points to a case in Canada where a lesbian couple and their male friend, sperm donor for the child they are raising, want to be recognized by the state collectively as the child's parents. The judge is receptive.
Kurtz sees this primarily as evidence that the whole push for gay marriage has caused us to completely lose our bearings about what marriage is. He may be right; he's certainly starting to convince me. But I continue to believe that the root of the problem is contempt for children, and an increasing assumption on the part of our culture (and judicial system) that children are a species of property. This is the thread that runs through our thinking about abortion, our divorce law, and the debate about the definition of marriage. Marriage is increasingly understood as having nothing to do with family obligations, particularly to children. It is increasingly understood as formal recognition of a romantic attachment, a matter for consenting adults in which the larger community - and even other members of the family - have no proper input.
Let me change the terms of the Canadian case a bit, to remove the gay element. Suppose a woman with an infertile husband turned to a friend to inseminate her - with her husband's knowledge and consent - and then the troika appeared before a judge asking to be recognized as the child's three parents. Would the judge be so sympathetic?
I suspect not. I'm not an expert in adoption law and paternity, but I imagine that in a case such as I am outlining, the law would either give the biological father the ability to assert his rights (in a contest that might presume in his favor or might be decided on the basis of the child's best interest), or he would be denied that chance in favor of the presumption that the husband was the legal father, whatever the biological relationship. I cannot imagine that a judge would cavalierly say that, if both men wish it, they could both be recognized by the state as fathers of the child. So in that sense, I think Kurtz is right: trhe judge has probably lost her marbles because of the gay element, and has been thereby rendered unable to see the absurdity of the case before her.
But you know, I don't think this is the root of the problem. After all, if the judge were willing to acknowledge the gay couple as the parents, but understood that there have to be rules for establishing who is responsible for a child, the judge could simply have said: no, this couple is no different from a married couple, and therefore either the biological father has presumptive rights or the lesbian partner of the mother has presumptive rights, or we decide in the best interest of the child, however the law reads. Why didn't she see things this way? Was it just the gay element?
I don't think so. I remember a case some time ago in the US where grandparents sued for some share in the "custody" of their grandchildren (the kids' parents' having refused to let the children see them). That seems to me a quite analogous situation to the case at hand: a party involved to some extent in the rearing of the child wants the law to recognize "rights" with respect to that child. In other words, the suit treats the child as a species of property, in which various parties have rights which need to be balanced and shared equitably. I suspect that open adoption - which has many passionate advocates - is going to present similar challenges to established law: attempts to have both the adoptive parents and the natural parents recognized as legal parents.
What's going to happen to children raised by groups of legal parents when these groups, inevitably, splinter? There are only three realistic possibilities. One, the law will grant all parties the kinds of visitation or joint-custody rights that deform the childhoods of so many children of divorce - only with the deformation multiplied many times. Whatever the legal fiction, these children will be raised essentially without families, and the law will have further progressed in the direction of treating children as property, a development which cannot but affect the treatment of all children. Two, the law will grant presumptive sole custody to the biological mother, with rare exceptions; this will effectively mean the end of fatherhood as a legal concept, and therefore the end of the family. Three, the law will make a "best-interests" judgement in every case as to whom should be granted custody of children. In effect, this will end the concept of parenthood as a legal matter; if all those with bonds of affection to a child can sue to assert "parenthood," with the state deciding between, we can expect the state to assert itself as, effectively, the only "parent" of all children, with powers temporarily delegated to individual parents who meet necessary social, even political, litmus tests. What these three outcomes have in common is the effective abolition of the family as an autonomous institution, and a radical expansion of the power of the state.
As I say, Kurtz is increasingly convincing that the gay marriage debate is the leading edge of a larger effort to eliminate marriage - and parenthood - as we understand them. But it doesn't have to be that way. I continue to believe that trying to shore up marriage simply by asserting that gay marriage is an absurdity, or by pointing to the dangerous follow-ons, is not going to be effective in the long term. The best way to shore up marriage and family is to do just that, directly: articulate what a marriage is, essentially, and what a family is, in terms that refer to something other than convention, religion and tradition. The force of these claims are fading fast. We need to bring other arms to the fore.