(The World & I)
Gay and lesbian activists, representing perhaps 3 percent of the population,
(1) insist on social acceptance of "minority" sexual preferences.
Part of their success has been their ability to use a species of ad
hominem: They charge that those who disagree with them are "homophobic"
or "heterosexist"--merely prejudiced--thus deflecting attention from
the issues to the people involved. Though not successful in state
legislatures or in Congress, their politicking in cities and in academic
settings has been effective. They have negotiated the recognition
of domestic partnerships--in 3 states, 55 cities, 61 colleges, with
172 employers, 29 labor unions, and 13 insurance companies--which
has extended some of the social and economic benefits of marriage
to "partners," straight or gay.(2) Their litigation challenges laws
that hinder them from marrying, procreating, or adopting. This campaign
for assimilation is intended to show that "inclusion of lesbians and
gays as equal members of society will not significantly change or
threaten it; it will simply extend full membership to people who have
been unjustly excluded or victimized."(3)
Advocacy phrased in familiar civil rights language is "just the opening
wedge"(4) for a more ambitious agenda to protect every consensual
"affectional sexual relationship" and to ensure protection from "any
biological risks involved in the exercise of one's sexual relational
freedom."(5) They seek "legal recognition of extended family networks
and alternative families of all sorts."(6) It is "a demand for inclusion
in the community on the individual's terms."(7)
In other words, we are asked to bless, protect, and support all consensual
sexual activity. This is not reasonable or necessary, nor is it desirable.
Not every sexual practice is worthy of our support and protection;
some deserve our censure. The marital union is a private consensual
relationship historically protected not merely for the sake of the
man and the woman involved, but also for the sake of the larger community.
Marriage has been the basis for procreation and child rearing, the
foundation of our familial and social life. The closest experience
we have to validating the private ordering of sexual/affectional relationships
is our years of no-fault divorce. That experiment in "improving" marriage
and family life is widely considered a failure.(8) Gay and lesbian
advocacy of legalizing same-sex marriage has increased as proponents
of the "traditional family" seek to reform laws regulating welfare,
marriage, and divorce.
These countervailing movements reflect divergent beliefs about the
nature of human beings, the meaning of sexual activity, and the purposes
of marriage and procreation. Despite its failures, the traditional
family--husband, wife, and children--still offers the best environment
for human development over our lifespan. The family roles of husband/father
and wife/mother offer stable and honored places for men and women
across the generations.(9) Legalizing same-sex marriages will ultimately
harm women and will undercut their status in the family and in the
larger culture.
DESIRE AND DISSOLUTION
There is nothing new under the sun. Human beings have lived in a variety
of ways: celibate, married, promiscuous. The human mind can find virtually
anything or everything erotic or arousing desire--the capacity of
human imagination and experience has no end. As clinical psychologist
A. Dean Byrd notes, however, sex is not a need: "No one dies from
lack of sex." Some die from sexually transmitted diseases, however.
Hence, to ensure its own survival, every society regulates sexual
behavior in some way.
Not all sexual activity is equally valued, and for good reason. Though
sexual behavior is usually conducted in private, it has public impact.
For example, failure to enforce statutory rape laws allows adult males
to exploit minors.(10) A significant number of those teens conceive,
and then they and their children end up on public assistance while
the fathers move on to engender other children they will not support
either. This sexual practice hurts the individuals directly involved
and the polity at large.
Sexual activities commonly proscribed are homosexual conduct, prostitution,
bestiality, necrophilia, voyeurism, and exhibitionism. Even though
the prohibition of something like bestiality is usually not defended
on the grounds of preventing harm to others (as are many prohibitions),
we have some sense of what human behavior should be like, and it
does not include intercourse with animals, or with the dead. This
is not to say that there is no history of such behavior or that such
activities have never received social approbation anywhere at anytime.
Rather, it is to point out that our regulations are frequently based
on our notions of what is good for us.(11)
THE COMMUNITY OF MARRIAGE
Only a few generations ago marriage was supported by numerous laws
and customs. Sexual activity outside of marriage was discouraged by
laws against sodomy, fornication, and statutory rape. Actions for
seduction or breach of promise to marry recognized the harm done by
those who abandoned lovers to public ridicule. Fidelity was expected.
Adultery, criminal conversation, abortion, and alienation of affections
were wrongs against spouses and against marriage itself. Procreation
was expected within marriage and discouraged outside of marriage;
contraception was limited, and illegitimate children and their parents
were socially isolated and legally disadvantaged. Not everyone followed
these rules, and not all of the rules were fair in theory or in practice.
But the rules were well understood.
During the sixties, legal and social movements converged to challenge
accepted standards of behavior: the push to reform the divorce process,
the focus on individual rights, new views about human sexuality,
and the increased availability of more effective contraceptives. Divorce
reform sought to end lifeless marriages and strip collusion and contention
from the dissolution process. The social sciences provided a view
of individuals as having sexual needs that must be met, while portraying
moral codes governing sexual activity as the arbitrary product of
religious bias or sexist custom. As more women entered higher education
and the higher-paid professions, their financial and social positions
were no longer so closely tied to their marital status. Repeal of
protective legislation prompted judicial assumptions that women could
take care of themselves sexually, maritally, and financially; alimony
awards decreased as no-fault divorce increased. We "moved from restrictive
divorce ... granted only in a few objectively intolerable situations
... past consent divorce ... to unilateral divorce"(12) available
at the demand of one party, irrespective of marital fault. States
no longer protected either the marital partners' expectations or the
institution of marriage itself.
A primary reason for the state's interest in marriage has been to
provide financial and emotional security and good role models for
children. Notions of what makes for a good woman or a good man have
changed over the last century, resulting in the contemporary emphasis
on self-fulfillment and a consequent unwillingness to adequately invest
ourselves in our marriages and families. This failure to invest has
contributed to the "fragility of the family," and family fragility
has justified the belief that "investments in oneself are likely to
be more profitable over the long haul."(13)
In their efforts to expand women's roles from the domestic to the
social sphere, some feminists have worked to redefine--or abolish-
-gender roles. Feminist psychologist Sandra Lipsitz Bem argues that
notions of maleness and femaleness, masculinity and femininity, are
socially constructed to "systemically reproduce male power." This
results, Bem theorizes, "not only in the oppression of women but the
oppression of sexual minorities as well." She believes that gender
roles privilege "rich, white, heterosexual men," and that once the
roles are dismantled "the distinction between male and female [will]
no longer organize[] either the culture or the psyche." In this admitted
utopia, "people of different sexes would no longer be culturally identified
with different clothes, different social roles, different personalities,
or different sexual and affectional partners any more than people
with different-colored eyes or different-sized feet are now."(14)
THE LEGACY OF LIBERATION
Expectations for behavior inside and outside of marriage are far different
now than they were just fifty years ago. New reproductive technology,
coupled with tolerance for diversity in sexual and familial relationships,
make the traditional connections between marriage, sex, and procreation
appear less necessary; an individual may have a sexual relationship
without marrying or procreating, and may procreate without marrying
or engaging in sexual relations. Three decades of sexual and social
experimentation--attempts to escape conventional morality and traditional
gender roles--have borne bitter fruit: high rates of abortion, divorce,
sexually transmitted diseases, pregnancies outside of marriage, family
violence, and increasing numbers of single women rearing their children
in poverty.(15) Our willingness to tolerate formerly illegal or socially
unacceptable activities has elevated personal privacy above family
or community interests. We have assumed that the community has no
interest in private sexual conduct.
The state no longer attempts to protect the marriage relationship
itself. The Supreme Court of Pennsylvania abolished as an "anachronism"
the tort of criminal conversation. Roe mandated the decision, according
to Justice Manderino's concurring opinion: "If a married man or woman
chooses to engage in sexual activity with one other than his or her
spouse, I believe such a choice is protected by the right to privacy
... and there is no 'compelling state interest' involved which would
justify the state's limiting the exercise of such rights." In dissent
Justice Roberts wrote: "I cannot agree that the marital relationship-
-which has been protected in this Commonwealth for more than two centuries-
-is no longer deserving of the protection of our law." The majority
was concentrating on protecting individual rights, the dissent on
protecting marriage itself.(16)
Husbands and wives once had expectations and duties prescribed by
law and custom; that is no longer the case. A Missouri court was unpersuaded
that a wife's undisclosed lesbian activities and drug use before marriage
entitled the husband to an annulment on the basis of fraud. The husband
contended that had he known of these activities, he would not have
married her. Because the couple had a satisfactory sexual relationship
with each other during their marriage, the court found that the wife'
s lesbianism and drug use did not vitiate the "essentials" of the
marriage.
The dissent was unpersuaded that the wife's conduct was unrelated
to her relationship with her husband. "If appellant's pre-marital
and post-marital lesbian behavior is not relative to any essential
element of the marital relationship, then can it be said that any
conduct in any form ever will be?" The state was once willing to categorize
extramarital sexual activity as a fault unworthy of protection. In
divorce proceedings it is now possible for judges to avoid determining
whether there are "recognizable limits to human behavior beyond which
society will neither accept nor protect."(17)
NO-FAULT RELATIONSHIPS
The rule of no-fault divorce has accommodated transient desires and
transient affiliation. Maggie Gallagher cogently argues that some
of the most painful aspects of divorce are the loss of important intangibles:
the shared family story and "the ability of families to transmit the
virtues and loyalties necessary to sustain family life in the next
generation." What is portrayed as "an increase in individual choice
and freedom," Gallagher explains, "is more accurately described as
a shift in power: from the married to the unmarried in general, from
the spouse who wants to stay married to the spouse who wants to leave,
from the person who wants to commit to the person who wants the right
to revoke his or her commitments."(18)
The story of family breakup is too familiar. They marry, they have
children together, one of them "falls in love" with someone else,
they divorce. Under the fault-based system of divorce the adulterer
was disadvantaged legally, socially, and financially. Under no-fault
divorce, adultery may be irrelevant to the division of property and
custody of the children. Judges attempt to preserve the parent-child
relationship, while insulating the child from any direct harm caused
by the parents' sexual behavior. Our grandparents would have thought
this "no fault" approach ludicrous: A parent whose extramarital sexual
activity destroys the marriage has already directly harmed the children
of that union. The harm is emotional, physical, and financial. And
as we have seen during the last three decades, the harm is measurable
and long-lasting.
Because the state is no longer an active party to the marriage or
to the divorce, the effect is for the courts to ratify the choices
of individuals who want the marriage to end. Consider the case of
the Norths. They married in 1982 but separated in 1991 when Mr. North
admitted to an affair with another woman. He learned he was HIV positive
in April 1991 but continued to have "unprotected" sexual intercourse
with his wife until his June confession. After a year's separation
Mr. North revealed that there was no other woman; he had engaged in
homosexual activities beginning in 1979, continuing through their
marriage, and he and his homosexual lover--also HIV positive--intended
to inform the children about his new lifestyle. Mrs. North filed for
divorce and asked that Mr. North's visitation be limited to protect
the children from his lifestyle and from the possibility of contracting
HIV. She believed that because he had repeatedly lied to her and endangered
her, he could not be trusted to adequately guard the children against
inappropriate exposure to the gay lifestyle or to HIV. The court of
appeals agreed that Mr. North's "future trustworthiness" was disputable
but thought extended visitation would be no more likely to harm the
children than daytime visitation.(19)
One of the dissenting opinions suggests that homosexual behavior now
has a privilege ordinary adultery does not:
"This woman was lied to ... [about] his past and ... current homosexual
conduct (a deceit particularly offensive given Mrs. North's known
religious background and feelings and Mr. North's status as a Baptist
minister). She was then deceived throughout the marriage ... was at
great risk ... of disease, and even death, when he, knowing that he
was HIV positive, had unsafe sex with her. ... Then ... with what
can best be described as "unmitigated gall," [he] counterclaimed for
alimony stating that he was unable to find employment because he was
HIV positive, and that Mrs. North should thus be required to support
him. Appellant's conduct has been no less contemptible because he
is a homosexual. Had his conduct been heterosexually based, it would
also have constituted vile conduct. ... now ... Ms. North, a woman
... emotionally raped, criminally victimized, and physically endangered
by Mr. North, [must] continue a course of expensive litigation ...
opposed by the full array and resources of the national homosexual
rights movement.(20)
"
Most of the children being raised by homosexual parents were produced
from heterosexual relationships that foundered.(21) The clash between
those who value traditional marriage and those who seek to fit marriage
to gay and lesbian lifestyles is sometimes enacted in particular families.
The Hertzlers divorced in 1990, with Pamela taking their two children
expressly on the condition that she disavow her lesbianism. Within
a year Pamela "entered into an open and ongoing lesbian relationship"
and agreed to transfer "primary custody" of the children to Dean,
who soon remarried. When Dean and his new wife questioned the children
about their mother's behavior, they found that Pamela had involved
the children in her lifestyle: They "snuggled with Pamela and her
companion in bed, marched with the couple in a gay/lesbian rights
parade; and participated in a 'commitment' ceremony uniting Pamela
and her new companion." The children had left Pamela's home with "
an astonishing grasp of anatomical terminology" that alarmed their
father. Alleging the "eroticization" of the children, he petitioned
for and won limitations on Pamela's visitation rights. The court chided
the parents for using the children as "proselytes of conflicting lifestyles"
but was unwilling to judge either better than the other.(22)
THE BEST INTERESTS OF THE CHILD
Frequently, in deciding custody of the children of a homosexual parent,
expert testimony or evidence from social science is proffered. While
a number of courts have been satisfied that the children of lesbian/gay
parents fare as well as other children of divorce, the social science
evidence is not adequate to prove that assertion. In litigation "gay
individuals are resorting with increasing regularity to the sciences
in an effort to overcome the moral opprobrium surrounding homosexuality."
As with other controversial causes, "litigants lacking the weapons
of legal doctrine, historical protection, or social consensus have
turned to the weapons that are available--information provided by
science, and social science."(23)
Research on the children of lesbian/gay families is marred by serious
methodological problems, including small subject set, heavy reliance
on self-reporting, use of unreliable test instruments,(24) and a tendency
to ignore evidence that does not support the predetermined conclusion.
For example, psychologist Charlotte Patterson, whose work is often
cited for the proposition that the children of lesbians are as emotionally
healthy as the children of other single mothers, admits that research
on gay and lesbian parents may not validly be generalized to the larger
gay and lesbian population, because "nobody knows the actual composition
of the entire population of lesbian mothers, gay fathers, or their
children."(25) Yet Patterson suggests that as the findings of studies
whose validity is unknown accumulates, they will become "meaningful."
Such an argument is an appeal to ignorance. No valid conclusions
can be drawn by accumulating a large number of invalid studies.
Researchers seeking to find no differences between the children raised
by gay and lesbian couples as compared with children raised by heterosexual
parents cannot know whether their findings of "no difference" mean
anything more than that their test instrument was ineffective. If
the studies are given credence, then the difference in the outcomes
for children should be equally as important. For example, the summary
of a study by Susan Golombok and Fiona Tasker reports that although
children "from lesbian families were more likely to explore same-sex
relationships ... the large majority of children who grew up in lesbian
families identified as heterosexual." True enough: nine of the twenty-
five children of lesbian mothers, and four of the twenty-one children
of heterosexual mothers, reported same-sex attraction. However, six
of the twenty-five children raised by lesbians, but none of the children
raised by heterosexual mothers, "had become involved in one or more
sexual relationships with a partner of the same gender." It seems
reasonable--if the study is deemed credible--to conclude that the
rate at which children of lesbian mothers choose same-sex partners
is geometrically larger than the rate among children raised by heterosexual
mothers.(26)
The children of gay or lesbian couples may face serious problems.
They may be deprived of effective role models; children of lesbian
couples will probably be deprived of a father on a day-to-day basis,
the detrimental effects of which are well documented;(27) and because
homosexual couples as a group have a history of substance abuse, more
risks for significantly shorter life expectancies than heterosexuals,
and a history of less stable relationships,(28) their children may
suffer considerable family disruptions.
Because the welfare of the child governs child custody decisions,
judges are often deciding how to cut the losses of family disruption.
Additionally, they are presented with gay/lesbian planned children
who would apparently benefit from a legal relationship with both the
adults caring for them. This is the motivation for judges' stretching
laws to cover same-sex arrangements.
"Social fragmentation and the myriad configurations of modern families
have presented us with new problems and complexities that cannot be
solved by idealizing the past.(29)
"
This compassion may be misguided and counterproductive in the long
run, however. As one judge dissenting to a "co-parent" adoption explained,
the law prefers to draw clear lines between legally recognized relationships
and those merely arranged by consent of the parties. Extending the
definition of parent out of kindness for the child may result, for
example, in cases in which "any number of people who choose to live
together--even those who may not cohabit--could be allowed to adopt
a child together." Deciding what is in the best interest of the child
has to come after, not before, deciding who has standing under a state
statute to adopt.(30)
Far more consequential than our concern for the welfare of the child,
however, has been a willingness to protect adults' "rights" to sexual
satisfaction unfettered by law. We needn't resort to policing bedrooms
to discourage some sexual activities: We merely must decide which
activities are private rights and which are statutory privileges.
Marriage and adoption may both be categorized as statutory privileges;
those who enter must comply with the law.
PRIVACY AND PUBLIC RESPONSIBILITY
Even as this private ordering of divorce (i.e., no-fault) is criticized
for its inequities, there are efforts to extend the private ordering
of marriage. Some proposals are for maximum privatization and may
invalidate prohibitions against incestuous and bigamous marriages.
The state, contends attorney Andrew Friedman, has no compelling interest
in prohibiting same-sex marriages:
"Many valid reasons exist for arguing that the state should not be
able to void the marriage contract on the grounds of public policy,
nor should the state be able to prescribe conditions, other than
the necessity for adult consent, for entering into the marriage contract,
terminating the marriage contract, or entering into a new marriage
contract.(31)
"
Friedman predicts that "there inevitably will be a need for the redefining
of marriage. The Supreme Court has stated that marriage consists of
two elements: personal and emotional attachment."(32) State prescriptions
relevant to divorce are now quite weak; implementation of Friedman'
s proposal would continue the process that no-fault divorce began,
by furthering the notion of no-promises marriage. Those unions are
likely to resemble what we now see in cohabitation arrangements: temporary
partnerships, relationships without clear duties or boundaries.
Gay and lesbian theorists assert that because society values long-
term "monogamous" coupling above all other relationships, traditional
marriage devalues the sexual and social coupling they desire to legitimate.(33)
Lesbian families, "rather than being organized through marriage and
childrearing ... are characterized by fluid boundaries, eclectic composition,
and relatively little symbolic differentiation between erotic and
nonerotic ties."(34) Some argue that the traditional model of marriage
has too many constraints:
"We know, as gays and lesbians, that love is not always erotic and
that what is erotic is not always love, and that the two of these
in turn can be separate issues from questions of support and companionship.
Yet these links are precisely what a two-person, monogamous model
of marriage imposes. What of our circles of ex-lovers, our f---buddies,
our housemates, our co-parents, our parents--our friends, the literal
substance of our community--what of them? "Marriage" tangles questions
of eros and love and economic dependency in a way that leaves us little
vocabulary for any relationship in which these are not present in
heavy doses.(35)
"
Traditionally, domestic relations law has been concerned about setting
clear boundaries to prevent family strife. This is likely the reasoning
behind incest prohibitions: Exogamous sexual relations and exogamous
marriage are thought to reduce exploitation and sexual jealousies
among persons closely related by blood or marriage.
NEW ARRANGEMENTS
Some of the publicized same-sex families have a "traditional" form:
One adult works full time, the other adult cares for the children
and the home. Some of these couples would marry if they could. There
are significant differences in the family structure, however. Some
gays and lesbians desire biologically related children "independent
of a relationship with a member of the opposite sex."(36) Still, they
must use a member of the opposite sex as a means to that end. "Pioneers"
Scott Davenport and Tun Fisher have two children, each born of a
surrogate mother artificially inseminated and paid $10,000--$20,000.
Neither considered himself gay when they were in college sleeping
with each other: "We were eventually going to get married and cheat
on our wives with each other."(37) Together fifteen years later, they'
ve accessed the D.C. domestic partnership ordinance in adopting the
oldest child. Such "co-parent" adoptions are necessary because in
most jurisdictions "psychological" parents who are not related to
the child biologically or married to the biological mother of the
child have no parental rights. Parental rights may hinge on whether
"artificial insemination takes place in a doctor's office ... or in
the home."(38)
Though they need no "male to validate the family," lesbian couples
like Jaki and Darlene are "sad" that they can't create a child just
between the two of them and must find a cooperative male for reproduction.
After eleven months of do-it-yourself insemination at a cost of $2,
200, their daughter was conceived. However, their written coparenting
contract may not be enforceable.(39)
Enforceability problems multiply as the number of persons with a legal
interest grows. Sarah's "nontraditional" family--in addition to grandparents
and cousins--includes her lesbian mother, one of her mother's ex-lovers,
her mother's current lover, her gay father, and her father's current
lover (although he hasn't been around quite long enough for Sarah
to be sure he's family). Nancy and Amy, "unlike many lesbian couples
who decided to have a child," have no "particular quarrel with the
notion that a parent of each gender is a desirable thing. But in the
original scenario, the women weren't necessarily looking for anything
much more enduring than a turkey baster deposit." The "mamas and the
papas," who live close to each other, are getting along so well that
the father's lover is talking seriously with a lesbian woman, a friend
of the mother's, about "adding another child to the extended family."
(40)
Support groups such as Dykes with Tykes provide places for homosexual
couples with a yen for parenting; Prospective Queer Parents holds
brunches that participants call "sperm-and-egg mixers."(41) Liz Hendrickson,
of the National Center for Lesbian Rights, estimated the number of
children growing up in gay/lesbian planned families to be in the hundreds,
and to be concentrated in San Francisco, New York, and other large
urban areas. "But these families are more significant than their numbers
suggest because they challenge the foundation of laws based on the
heterosexual, nuclear-family model."(42) Lesbians Sandra and Robin
orally contracted with two gay men to produce one child each. The
men agreed to someday meet their respective children at the request
of the women, so that the children could see the men "who helped make"
them. When the daughter of Thomas and Robin was five, it was arranged
for her to meet her father; over the course of the next six years,
he visited his daughter twenty-six times for a total of about 148
days. The visits were arranged by mutual agreement; the mothers requested
and Thomas agreed to treat the other child as his own (the other child'
s father was alcoholic, then very ill with AIDS). When Thomas wanted
to take his daughter to meet his parents without the mothers, they
cut off contact. Thomas asked the court to recognize him as the legal
father and grant him standing to sue for visitation. The mothers were
"terrified"; they had believed that Thomas could be trusted to be
an on-call father at their discretion, and now he wanted to be a father
to his child.(43)
Though Thomas' paternity was undisputed, the lower court refused to
issue an order of filiation on the basis of "equitable estoppel."
The court sympathized with the feelings of the women, who worried
that in meeting her paternal grandparents, the child "might be exposed
to people who might question and undermine the concept of family they
had worked to instill in the children--two lesbian mothers raising
two children, equally, and two children responding to each other as
sisters and responding to two mothers, equally, without regard to
biological ties." The child, according to the court, saw her father
"as an outsider attacking her family, refusing to give it respect,
and seeking to force her to spend time with him and his biological
relatives, who are all complete strangers to her, for his own selfish
reasons."(44)
The reality of the child's life, the court concluded, was that she
had two mothers; and order of filiation would "be a statement that
her family is other than what she knows it to be and needs it to be."
(45) The appellate court reversed the decision, noting that biologically
and socially Thomas was unavoidably part of the child's family. "The
notion that a lesbian mother should enjoy a parental relationship
with her daughter but a gay father should not is so innately discriminatory
as to be unworthy of comment."(46)
In cases deciding custody, adoption, and visitation where one or both
parents is homosexual or bisexual, or a same-sex lover seeks coparent
or adoptive parent status, "[t]he matter before the court is one of
statutory application; it is not about sexual orientation and is not
about approval or disapproval of the manner in which individuals live
their lives."(47) The primary concern in these cases is the best interests
of the child. While there are statutory guidelines, some of the situations
courts face were never anticipated by legislatures.
For example, same-sex couples have asked courts to interpret stepparent
adoption statutes to allow the lover of a biological parent to adopt
the child without cutting off the parental rights of the biological
parent. Some courts have reasoned that a lover who is "committed"
to the parent and to the child stands in the place of a "stepparent,
" and so the statute should cover such an adoption, particularly in
cases where the "stepparent" can't marry the parent because same-sex
marriage is not legal.(48) New York has allowed the "step-parent"
adoption of children by an unmarried heterosexual couple, as well
as by an unmarried lesbian couple.(49) Some judges have objected to
these "extensions," arguing that "such benefits should be conferred
legislatively, rather than judicially."(50) Other courts have denied
adoptions by homosexuals or bisexuals, arguing that since most children
will be heterosexual, they need stable adult role models as they develop
into young men and women interested in appropriately interacting with
members of the opposite sex.(51)
In the coming years we can expect more lobbying for bisexuals' rights
to marriage, parenthood, and social respect.(52) They are, according
to researchers, "where homosexuals were in the early 1960s,"(53) organizing
into groups to support the Queer Movement,(54) supporting people seeking
to transcend the boundaries of sex and gender.(55)
"Even in San Francisco, a bastion of sexual freedom, bisexuals routinely
experienced discrimination and rejection. Surprisingly, homosexuals
were said to be just as negative as heterosexuals. ... Some homosexuals
saw bisexuals as people who were really homosexual but afraid to admit
it, or as unloyal lovers who might switch to the other sex on a whim.(56)
"
Research on bisexuals is relatively sparse. Weinberg's study included
working at the Bisexual Center in San Francisco and visiting the "
sexual underground," which includes sadomasochist clubs, swing parties,
gay bathhouses, lesbian bars, gay bars, a female impersonator show,
a bar that was said to cater to bisexuals, bookstores that specialized
in sexual materials, peep rooms, and local parks with popular tearooms
(men's restrooms for sex). They also visited "a urine club (for those
interested in urine play), an enema club, a 'scat' club (for feces
play), and a fisting club."(57)
According to Weinberg, 'many bisexuals want their ideal lifestyle
affirmed, not untypically as: A deep relationship with a man and a
woman, all living together and all having sex with each other, with
sex outside being possible.'(58)
The problems they encounter, according to researchers, "is not so
much bisexuality per se ... but the nature of a common bisexual social
arrangement--that of sustaining a nonmonogamous relationship." They,
like homosexuals and heterosexuals with multiple sexual partners,
have faced AIDS with varying responses. Some have forgone exploration
of their sexuality, or favorite practices such as rimming (anal-oral
sex) or fisting, or they have reduced the number of male sexual partners.
Others try monogamy, "latex sex or an avowal not to let fear of disease
ruin their sex lives." As one HIV-positive male explained: "You feel
dangerous [to your sex partner]. But I have to keep it in perspective
and hold on to my sexuality in the face of all the horror. I feel
like giving it up at times though."(59)
Sexual identification and sexual behavior are related to sexual opportunities
and social organizations
"that facilitate sex by providing ways to meet partners, places to
have sex, justifying ideologies, and the like. For heterosexuals these
would include things like singles bars and dances, dating services,
marital institutions [sic], and so on. For homosexuals there are
gay bars and many clubs and institutions in the homosexual subculture.(60)
"
Bisexuals participate in both of those cultures.(61) If gay and lesbian
marriage becomes a reality, surely bisexual marriage will follow.
Cases challenging the prohibition against same-sex marriage go back
at least twenty years(62;) it may be that cases challenging laws governing
adoption, custody, and visitation will swing judicial opinion toward
legal recognition for homosexual marriage. There is great sympathy
for children in the courts and throughout society. For that reason
we rightly seek to protect their relationships with their parents.
But our awareness of the importance of those relationships should
not encourage us to bless every sexual relationship two consenting
adults wish to legitimate. For example, we cannot bless the consensual
union of a sadist and a masochist, for the same reason we don't bless
the union of an abusive spouse and a battered spouse: That pattern
of interaction is psychologically and physically unhealthy for all
in the household.
FAMILY POLICY AND THE FUTURE
Marriage is the only important social institution in which women have
always participated in large numbers and in which they have been valued
and necessary participants. We have long recognized in law and culture
the importance of both the biological and the social family. The normative
effect of removing women as central to the definition of marriage
could profoundly devalue the work of women within the family, just
as no-fault divorce has. Not only will such male-male marriages validate
male dominance in the only sphere where women have been prominent,
but they will promote the exploitation of women, as gay couples contract
for the reproductive "services" of women to bear their biological
children.
Gay men engendering children by surrogacy means that men who choose
not to or who "physically and emotionally cannot enter into a mutually
caring relationship with a woman"(63) can use "assisted conception,
"(64) that is, can use women as a means to an end, using women's reproductive
capacity while denying in their own union the place of women in the
structure of the family. Perhaps it sounds ungenerous, but it may
be time for women to require that men who want to father children
pay the price, as it were: They must learn to establish respectful,
stable, loving, legal relationships with the mothers of their children.
The state has a compelling reason to preserve marriage as a union
between a woman and a man: Once the state endorses a marital form
that excludes women--that is, the marriage of two males--women will
lose ground in the family, the economy, and the culture. Because the
number of gays in the population exceeds that of lesbians, it may
be that the result of legalizing same-sex marriages will be to increase
male domination.(65) We could end up with a hierarchy of marriages
with gay unions holding more economic power and social status than
lesbian or heterosexual marriage.(66)
Even if more lesbians than gays marry, it may simply reduce women'
s status. Historically, every field in which women dominate has lower
social status than those dominated by men. The best way of predicting
the status and impact of lesbian unions may be to look at the position
of female-headed households. These unions are likely to be poorer,
and their children are likely to suffer the negative effects of father
absence, the most negative being the misogyny of their sons. As David
Blankenhorn points out, "Boys raised by traditionally masculine fathers
generally do not commit crimes. Fatherless boys commit crimes." One
of the results of a home life deprived of the traditional male who
teaches his sons the "norm of paternal obligation and the duty to
provide for children" is a "hypermasculinity" that can result in unrestricted
aggression.(67)
Though the traditional marriage of a woman and a man has been much
maligned, it is still quite popular. In the United States, 95 percent
of all women will marry at some time during their lives. What has
marriage ever done for women? feminist theory asks. That depends on
what we compare it with. At least part of the current antipathy toward
marriage is misdirected. Many people look at the state of divorced
women and their children and label their poverty a product of marriage:
It is not. It is the result of marital dissolution. Married women
are safer, healthier, and more financially secure than are single
women, especially single women with children.(68)
"Perhaps," notes Robert George, "every generation must learn for itself
that 'private' immoralities have public consequences." Promiscuity
has "largely undercut the understandings of the human person, marriage,
and the family that are presupposed by the very idea of sexual immorality
and by the ideals of chastity and fidelity which give family life
its full sense and viability."(69) To protect in law new versions
of morality that validate extramarital and same-gender sexual relationships
will be merely "to protect one man from another as each struggles
to achieve his own satisfactions."(70) We have already lost that battle
in the realm of no-fault divorce. No aggregate of persons, each intent
upon their own desires, can constitute a civil society. "A community,
" Wendell Berry explains, "identifies itself by an understood mutuality
of interests. But it lives and acts by the common virtues of trust,
goodwill, forbearance, self-restraint, compassion, and forgiveness."
Such a community has the power to teach and to influence behavior
without coercion. A community entails
"a set of arrangements between men and women. These arrangements include
marriage, family structure, divisions of work and authority, and responsibility
for the instruction of children and young people. These arrangements
exist, in part, to reduce the volatility and the danger of sex--to
preserve its energy, its beauty, and its pleasure; to preserve and
clarify its power to join not just husband and wife to one another
but parents to children, families to the community, the community
to nature; to ensure, so far as possible, that the inheritors of sexuality,
as they come of age, will be worthy of it.(71)
"
Marriage has historically been a metaphor for unity, fidelity, and
harmony; marital disruption has been a metaphor for division, faithlessness,
and discord. The desire to legalize same-sex marriage may have arisen
in part from the ways in which women and men have disappointed each
other, themselves, their parents, or their children. To live a lifetime
in familial or marital oneness is not easy, but neither is it impossible.
The differences between the sexes--trivialized as stereotyped, socially
constructed roles--may be small but are salient.(72) That "maleness"
or "femaleness" is an endowment, a gift best understood in marriage
and family life, becomes apparent only across the generations. To
bring children into being deliberately deprived of a mother or a father
is at best hubris, at worst the deepest kind of despair. Lear called
upon heaven for patience, while cursing his faithless daughters with
all the terrors of the earth.(73) We know earthly terror of our own
making; it is patience, repentance, and forgiveness we have yet to
learn.
Camille Williams, J.D., has taught family law for undergraduates at
Brigham Young University and writes about issues relating to the status
of women and the family.
Footnotes:
1.Edward Laumann et al., The Social Organization of Sexuality: Sexual
Practices in the United States (Chicago: University of Chicago Press,
1994), 297.
2.Lambda Legal Defense and Education Fund, Inc., "National Overview
of Jurisdictions and Companies That Recognize and/or Provide Benefits
to Domestic Partners of Employees," a supplement to Negotiating for
Equal Employment Benefits. Those benefits have since been overturned,
unfunded, put in litigation, or limited in 12 cities and 4 colleges,
and by 26 employers and 10 unions.
3.Shane Phelan, Getting Specific: Postmodern Lesbian Politics (Minneapolis:
University of Minnesota Press, 1994), 111.
4.Phelan, Getting Specific, 111.
5.Mark Blasius, "An Ethical Basis for Lesbian and Gay Politics in
the Relational Right," a paper presented at the Seventh International
Conference on Social Philosophy, Colorado College, August 1991, 24-
-25, quoted in Phelan, Getting Specific, at 127.
6.Phelan, Getting Specific, 128.
7.Shane Phelan, Identity Politics: Lesbian Feminism and the Limits
of Community (Philadelphia: Temple University Press, 1989), 105. Phelan'
s comment was part of her analysis of the tensions between lesbian
feminists and lesbian sadomasochists.
8.See Allen Parkman, No-Fault Divorce: What Went Wrong? (Boulder,
Colo.: Westview Press, 1992); David Blankenhorn, Fatherless America:
Confronting Our Most Urgent Social Problem (New York: BasicBooks,
1995); Karl Zinsmeister, "Divorce's Toll on Children," American Enterprise
7 (May/June 1996), 39--44.
9.Barbara DaFoe Whitehead, "The War between the Sexes," American Enterprise
7 (May/June 1996), 25--27.
10.Joe Klein, "The Predator Problem," Newsweek, 29 April 1996, 32.
11.I disagree with Richard Posner's conclusion that sexual mores are
more likely tied to an unreasonable disgust factor, as opposed to
a defensible argument about relative goods. See his discussion in
Sex and Reason (Cambridge, Mass.: Harvard University Press, 1992),
220--240.
12.Harry D. Krause, Family Law in a Nutshell (St. Paul, Minn.: West,
1995), 337.
13.Williams Goode, World Changes in Divorce Patterns (New Haven, Conn.:
Yale University Press, 1993), 9.
14.Sandra Lipsitz Bem, The Lenses of Gender: Transforming the Debate
on Sexual Inequality (New Haven, Conn.: Yale University Press, 1993),
viii and 191--92.
15.William Bennett, The Index of Leading Cultural Indicators I (Washington,
D.C.: Heritage Foundation, Empower America, 1993).
16.Fadgen v. Lenkner, 365 A.2d 147, 153 (Pa. 1976). The majority was
also uncomfortable that the tort as defined placed fault on the third
party without holding the errant spouse responsible for his or her
part in the adulterous relationship.
17.Woy v. Woy, 737 S.W.2d 769, 778 (Mo. Ct. App. 1987). Clearly the
court sought to avoid the harsh financial effects annulment would
have had for the wife.
18.Maggie Gallagher, The Abolition of Marriage: How We Destroy Lasting
Love (Washington, D.C.: Regnery Press, 1996), 22--24, 145.
19.North v. North, 648 A.2d 1025, 1025, 1032 (1994).
20.North v. North, dissent of J. Cathell, at 1037--1039.
21.Sue Anne Pressley, Nancy Andrews, "For Gay Couples, the Nursery
Becomes the New Frontier," Washington Post, 20 Dec. 1992, A1.
22.Hertzler v. Hertzler, 908 P.2d 946t, 948, 949, 952 (Wyo. 1995).
23.Patricia Falk, "The Prevalence of Social Science in Gay Rights
Cases: The Synergistic Influences of Historical Context, Justificatory
Citation, and Dissemination Efforts," Wayne Law Review, 41 (no. 1,
Fall 1994), 1, 5.
24.Julie Schwartz Gottman, "Children of Gay and Lesbian Parents,"
Marriage and Family Review 14 (nos. 3--4, 1990), 177--93.
25.Charlotte Patterson, "Summary of Research Findings," in Lesbian
and Gay Parenting: A Resource for Psychologists, by the Committee
on Women in Psychology, Committee on Lesbian and Gay Concerns, and
Committee on Children, Youth, and Families of the American Psychological
Association (Washington, D.C.: American Psychological Association,
1995), 1. See also Charlotte Patterson, "Children of the Lesbian
Baby Boom: Behavioral Adjustment, Self-concepts, and Sex Role Identity,
" in B. Greene and G.M. Herek, eds., Lesbian and Gay Psychology: Theory,
Research, and Clinical Applications (Thousand Oaks, Calif.: Sage
Press, 1994), 156--75.
26.Susan Golombok and Fiona Tasker, "Do Parents Influence the Sexual
Orientation of Their Children? Findings from a Longitudinal Study
of Lesbian Families," Developmental Psychology 32 (1996), 3--11.
27.See, for example, David Popenoe, Life without Father: Compelling
New Evidence That Fatherhood and Marriage Are Indispensable for the
Good of Children and Society (New York: Free Press, 1996); Sara McLanahan
and Gary Sandefur, Growing Up with a Single Parent: What Helps, What
Hurts (Cambridge, Mass.: Harvard University Press, 1994).
28.Jeffrey Satinover, M.D., Homosexuality and the Politics of Truth
(Grand Rapids, Mich.: Baker Books, 1996). See also Charles Socarides,
Homosexuality: A Freedom Too Far (Phoenix: Adam Margrave Books, 1995).
29.In the Matter of Evan, 153 Misc. 2d 844, 852, 583 N.Y.S.2d 997,
Surrogate's Court of New York County (1992).
30.In the Matter of Jacob, 660 N.E.2d 397, 408, 409 (N.Y. 1995) (Bellacosa,
J. dissenting, Simons and Titone, JJ., joined). This parallels the
steps in a child-abuse case: First it must be determined that the
parents or guardians are unfit, then the court decides which of the
available custody alternatives are in the best interests of the child.
If the order is reversed, no parent-child relationship would be protected.
For example, it would likely be in the best interests of my child
to be raised by someone wealthy; if that line of analysis were alone
determinative, the Trumps could take my child. They would only be
successful under current legal practice, however, if I were first
declared an unfit parent.
31.Andrew Friedman, "Same-Sex Marriage and the Right to Privacy: Abandoning
Scriptural, Canonical, and Natural Law Based Definitions of Marriage,
" Howard Law Journal 35 (1992), 173, 223.
32.Friedman, "Same-Sex Marriage," 173, 224.
33.Nancy Polikoff, "We Will Get What We Ask For: Why Legalizing Gay
and Lesbian Marriage Will Not 'Dismantle the Legal Structure of Gender
in Every Marriage,' " Virginia Law Review 79 (1993), 1,549. Polikoff
supports the dismantling of gender in marriage; the quotation in her
title is from "law professor and lesbian and gay rights' attorney
Nan Hunter [who at the time Polikoff's article was written was] deputy
general counsel at the Department of Health and Human Services" (1,
537). Hunter had predicted that legalizing gay and lesbian marriage
would "dismantle the legal structure of gender in every marriage."
See Nan Hunter, "Marriage, Law and Gender: A Feminist Inquiry," Law
and Sexuality 1 (1991), 18--19.
34.Kath Weston, Families We Choose: Lesbians, Gays, Kinship (New York:
Columbia University Press, 1991), 206.
35.Steven Homer, "Against Marriage," Harvard Civil Rights--Civil Liberties
Law Review 29 (1994), 506.
36.Marla Hollandsworth, "Gay Men Creating Families through Surro-gay
Arrangements: A Paradigm for Reproductive Freedom," American University
Journal of Gender and the Law 3 (1995), 183, 226.
37.Pressley, "For Gay Couples," A1.
38.David Tuller, "Gays and Lesbians Try Co-Parenting," San Francisco
Chronicle, 4 Feb. 1993, A1.
39.Pressley, "For Gay Couples," A1. See also McGuffin v. Overton,
542 Y.W.2d 288 (Mich. App. 1995), in which a lesbian partner of a
deceased custodial mother lacked standing to challenge petitions of
the biological father to obtain custody of children born out of wedlock,
despite the mother's execution of power of attorney delegating parental
powers to her partner and execution of will purporting to make the
partner guardian of the children.
40.Lindsy Van Gelder, "A Lesbian Family Revisited," Ms 1 (March/April
1991), 44--45.
41.Pressley, "For Gay Couples," A1.
42.Tuller, "Gays and Lesbians," A1.
43.Thomas S. v. Robin Y., 599 N.Y.S.D.2d 377--378, n.2, (1993), reversed
by 618 N.Y.S.D.2d 356 (A.D. 1 Dept. 1994). Referred to hereafter as
Thomas S. I and Thomas S. II, respectively.
44.Thomas S. I, 379--381.
45.Thomas S. I, 381.
46.Thomas S. II, 361.
47.Adoption of Two Children by H.N.R., 666 A.2d 535, 541 (N.J. Super.
A.D. 1995) (Wefing, J.A.D., dissenting).
48.Courts in New York, New Jersey, Vermont, Illinois, and Washington,
D.C., have "liberally" interpreted adoption statutes, in effect giving
a child two mothers or two fathers; Wisconsin has declined such an
interpretation.
49.Matter of Jacob, Matter of Dana, 660 N.E.2d 397 (N.Y. 1995).
50.H.N.R., 541, Wefing, J.A.D., dissenting.
51.See State Dept. of Health v. Cox, 627 So.2d 1210, 1220 (Fla.App.
2 Dist. 1993)(older adoptive children face many difficulties from
their experiences prior to or during adoption; "it is perhaps more
important for adopted children than other children to have a stable
heterosexual household during puberty and the teenage years"); also,
Appeal in Pima City Juvenile Action B-10489, 727 P.2d 830 (Ariz.
App. 1988) (it is anomalous for the state to make sodomy illegal and
to create a parent after that proscribed model).
52.Martin Weinberg, Colin Williams, Douglas Pryor, Dual Attraction:
Understanding Bisexuality (New York: Oxford University Press, 1994),
4--9, 96--106, 293--94.
53.Weinberg et al., Dual Attraction, 298.
54.The pejorative "queer" has been adopted as part of a positive coalitional
identity for those outside the heterosexual mainstream and may include
lesbians, gays, bisexuals, transgendered people, heterosexual or homosexual
sadomasochists, fetishists, and pedophiles. See Phelan, Getting Specific,
151--54.
55.Weinberg et al., Dual Attraction, 299.
56.Weinberg et al., Dual Attraction, 8.
57.Weinberg et al., Dual Attraction, 18.
58.Bisexual female subject, quoted by Weinberg et al., Dual Attraction,
77.
59.Weinberg et al., Dual Attraction, 92, 247. "Monogamous" to many
bisexuals means having only one sexual partner of each gender at a
time (242).
60.Weinberg et al., Dual Attraction, 297.
61.Weinberg et al., Dual Attraction, 297.
62.See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (such prohibition
does not offend the First, Eighth, Ninth, or Fourteenth Amendments
to the U.S. Constitution); and Singer v. Hara, 522 P.2d 1187 (Wash.
1974) (the nature of marriage itself is the union of a man and a woman).
63.See Elizabeth Rush, "Breaking with Tradition: Surrogacy and Gay
Fathers," in Diana Tietjens Meyers, Kenneth Kipnis, and Cornelius
Murphy, Jr., eds., Kindred Matters: Rethinking the Philosophy of the
Family (Ithaca, N.Y.: Cornell University Press, 1993), 102, 135.
64.Hollandsworth, "Gay Men Creating Families," 183, 187, 227.
65.Gay parents were more likely than lesbian parents to encourage
play with sex-typed toys. Mary Harris and Pauline Turner, "Gay and
Lesbian Parents," Journal of Homosexuality 12:2 (1985--86), 110. Also,
"gay fathers scored more nonandrogynous (masculine, feminine, undifferentiated)."
Frederick Bozett, "Gay Fathers: A Review of the Literature," Journal
of Homosexuality 18:1 and 2 (1989), 137, interpreting B. Robinson
and P. Skeen, "Sex-Role Orientation of Gay Fathers versus Gay Non-
fathers," Perceptual and Motor Skills 55 (1982), 1,055--59.
66.Harris and Turner, "Gay and Lesbian Parents," 110. Reporting a
median income for gay/lesbian parents: $12,000--15,000. Of the gay
parents, none earned less than $9,000 a year; 50 percent earned over
$30,000 a year. Among lesbians, 54 percent had incomes less than $9,
000; 46 percent earned between $9,000 and $30,000 a year; and none
had incomes over $30,000. Only a small sample was used, but it confirms
the disparities documented elsewhere.
67.Blankenhorn, Fatherless America, 30--31.
68.See Gallagher, The Abolition of Marriage. See also, David Larson,
James Swyers, and Susan Larson, The Costly Consequences of Divorce:
Assessing the Clinical, Economic, and Public Health Impact of Marital
Disruption in the United States (Rockville, Md.: National Institute
for Healthcare Research, August 1995); Whitehead, "The War between
the Sexes," 25--27; Glenn Stanton, "Only a Piece of Paper: The Unquestionable
Benefits of Lifelong Marriage" (Boulder, Colo.: Focus on the Family,
August 1995).
69.Robert George, Making Men Moral: Civil Liberties and Public Morality,
(Oxford: Clarendon Press, 1993) 36.
70.George, 36. The phrasing is part of George's discussion of Augustine'
s attitude toward private vice and public virtue; the conclusion is
mine.
71.Wendell Berry, Sex, Economy, Freedom and Community (New York: Pantheon
Books, 1993), 120.
90.See Popenoe's discussion of male-female differences in interpersonal
interaction and parenting, in Life without Father.
91.Lear 1.4270--84 (line numbering from the Riverside Edition of Shakespeare
(Boston: Houghton-Mifflin, 1974).
Camille Williams, J.D., Same-sex
marriage and the ends of desire. Vol. 11, The World & I, 10-01-1996,
pp 298.