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Same-Sex Marriage: Not a Threat to Marriage or Children

Timothy F. Murphy

A few nations recognize same-sex marriage, as do a small number of U.S. states, but this kind of marriage remains the legal exception around the world. In reviewing the reasons some people object to same-sex marriage, law professor Martha Nussbaum says that the one that is most often heard from thoughtful peopleand that is therefore one worth close attentionis that the main purpose of state-sanctied marriage is procreation and the rearing of children.1 Law professor Margaret Somerville has advocated this sort of position, although her objections to same-sex marriage are not simply that it betrays the meaning of marriage; she also believes that it is harmful to children.2 This kind of criticism may be thoughtful compared to other objections raised against same-sex marriageinsofar as it presumes no baseness in homosexual couples and offers a theory of marriagebut the account is unnecessarily restrictive in its characterization of marriage and unfounded in its allegations of threats to childrens welfare. Critics of same-sex marriage deploy a range of arguments as they register their objections. Some of these arguments seem to be rooted in unfamiliarity with homosexuality, some emanate from specic religious beliefs, and others invoke genuinely philosophical standards having to do with the nature of human relationships and the praxis of social institutions. I do not intend to look at all these arguments here, but only one that seems to have a hold on some thoughtful people, namely the idea that the conditions of conceiving and raising children are no less fundamental to marriage than the actual relationship of the people committing themselves to marriage. Is there something about the procreation and rearing of children that requires the exclusion of same-sex couples from marriage, as a matter of shared social judgment? Is there something about having and rearing children in same-sex marriages that would harm those children, to the point that same-sex marriages should be resisted as a matter of ethics and the law? I will move to show that marriage may be opened to same-sex couples without incurring damages to the relationships and circumstances that are important to the welfare of children. The Meaning of Marriage According to Somerville, society should use marriage to institutionalize and symbolize respect for the transmission of life and not just any transmission of life
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but one that expresses and conforms to a certain socio-sexual ecology, as she calls it. Somerville says society is entitled to exclude gay men and lesbians from marriage in order to protect that ecology, to protect an intimate relationship for the purposes of its procreative potential.3 The language of ecology here suggests the environment important to the living organisms in it, and Somerville uses it to suggest that a certain kind of marital relationship is, in fact, important to the well-being of children in it. The inclusion of gay men and lesbians in marriage would necessarily eliminate marriages role in symbolizing and protecting the procreative relationship. Somerville says that keeping same-sex couples from marriage is necessary to keep the very nature, essence and substance of marriage intact. On this account, same-sex marriage is not socially benign but socially destructive in its essence, an assault on the sexual ecology in which families and children allegedly thrive. In order for this account of marriage as procreative to be coherent, it mustamong other thingsmake sense of the people who marry but who do not have children for reasons of choice or chance. On this point, Somerville says, Even if a particular man and woman cannot or do not want to have a child, their getting married does not damage this general symbolism. Why not? She says, The reproductive potential of opposite-sex couples is assumed at a general level and is not investigated in individual cases. To do otherwise would be a serious and unjustiable breach of privacy. In other words, a marriage should be presumed fertile as a matter of course even if no children ensue since the couple is capableas a matter of anatomyof having children. Somerville does not think, moreover, that the state should inquire into whether individual people can actually have children because people are entitled to privacy in this regard. In possession of no facts to the contrary, therefore, the state is entitled to assume that all men and women entering marriage are fertile both individually and as a couple. By contrast, the state could never make an assumption like that about same-sex couples because theyas a couple of two men or of two womenare inherently sterile when left to their own capacities. No individual inquiry needs to take place and no privacy rights need to be violated in order to know that those kinds of couples cannot have children unless they reach beyond their own sexual acts for assistance. Still, the state does know in a general way that some opposite-sex people who marry will be infertile at the outset of their relationships, that some become infertile after marriage, and that some take steps to avoid children altogether. Nursing home love birds can marry late in life, in their eighties and even nineties, and not even the most blinkered state licensing agency will expect these couples to have children. The extension of marriage licenses to people who cannot be reasonably expected to have children appears to open the door to same-sex couples because it allows people known to be infertile to marry, and that infertility is known without any intrusion against anyones privacy. It can therefore be asked why some couples can marry despite their manifest infertility, as exceptions to the rule of presumptive marital procreativity, but not others

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who are incapable of having children. In order to preserve the exclusion of some but not all infertile couples from marriage, Somerville has to show that opposite-sex couples who cannot have children still somehow belong within the paradigm of inherently procreative marriage. She does this by discounting the infertility of the late-to-marry and other men and women in similar circumstances, saying that these marriages are acceptable because they do not damage the reproductive symbolism of marriage in the way that same-sex marriages would. Indeed, they continue this symbolism at the grandparent level and, therefore, across the generations. It is hard to know exactly what Somerville means by this, but let me venture this interpretation: All married couples become infertile in and of themselves if people stay in them long enough and live long enough, and late-tomarry couples can function socially in the way most older parents eventually do, as grandparents or as stand-ins for grandparents. In a sense, the infertility of late-to-marry couples is only contingently true, an artifact of their age. At an earlier age, they would have been capable of producing a child together, which can never be true for same-sex couples at any age. In this way, late-in-life marriage retains a symbolic connection with procreation, albeit only historically. If a couple was infertile because of, say, ovarian or testicular cancer, that infertility would also be only contingentan accident of disease or disorderand not intrinsically rooted in the anatomic limitations of the marrying parties. Those whose infertility is contingent on their age or disease are eligible to marry, it ostensibly follows, while those couples whose infertility is rooted insuperably in the limitations of their shared biological sex still stand outside the domain of people able to have children without the assistance of others. The symbolism of marriage as open to conception, gestation, and childbirth is not damaged by malefemale couples whose incapacities are an artifact of their age or a consequence of disorders. The Court of Appeal for Ontario, in Halpern et al. v. Attorney General of Canadawhich struck down Ontarios exclusion of same-sex couples from marriagespecically considered this line of analysis when it asked whether natural procreation was relevant as a condition of marital union. The Court bypassed a philosophical evaluation of this argument, however, and simply said that there are other ways to have children, A law that aims to encourage only natural procreation ignores the fact that same-sex couples are capable of having children.4 Along similar lines in assessing the meaning of fertility as a condition of marriage, Nussbaum has acknowledged that it is important to protect the institution in which people have and rear children, but she goes on to say that it is less clear that the state should restrict marriage only to those with the (unassisted) capacity to do those things.5 In terms of the states interest in procreation, Nussbaum says it is very difcult to explain why the marriage of two heterosexual seventy-year olds should be permitted and the marriage of two men or two women should be forbiddenall the more since so many same-sex couples have and raise children.6

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Pointing (a) to assisted reproductive treatments (ARTs) and their role in allowing inherently sterile relationships to produce children or pointing (b) to the children that gay men and lesbians bring into their same-sex relationships from prior heterosexual relationships is, however, nonresponsive to the claim that a natural capacity to have children is what entitles people to marry, and these ways of having children are not a refutation of that position. Opposite-sex couples who turn to gamete donation and surrogacy to have children typically do so in order to remedy an incapacity to conceive or gestate, an incapacity that is rooted in disease, disorder, or age. By contrast, ARTs do not inaugurate or restore fertility in same-sex relationships so much as they bypass sex-dependent conception and/or gestation. For opposite-sex couples, ARTs compensate for decits in anatomical capacity, while ARTs extend to same-sex couples options they could not otherwise have. It is, I think, possible on this kind of distinction to enfold infertile heterosexual couples within marriage but also exclude homosexual couples from it. I do not think, however, that the exclusion of homosexual couples from marriage can withstand another, more vitiating attack. Somerville takes pains to indicate that her views are entirely secular, but under such a presumption I do not see that it is possible to dene marriage as rigidly as she does. Specically, she asserts a conception of marriage and then declares that this conception of marriage is necessary to society, marital spouses, and children alike, making the conception good primarily in its results. A once-and-for-all, xed notion of opposite-sex marriage is hard to defend as a matter of secular moral philosophy that is not specically grounded in a more ulterior metaphysical view of human beings, and Somerville offers no such view in support of her idea of marriage; hers is a stand-alone secular denition of marriage, and she ultimately grounds the idea in its effects, namely its social utility. If social utility is the measure of marriage, then an evaluation of marriage will not turn on questions of inherent capacities for fertility but on whether that strict conception as limited to opposite-sex couples is necessary or whether it might be extended to same-sex couples without detracting from its social value. By contrast to Somervilles stand-alone denition of marriage, some commentators have defended a deeper philosophical grounding of marriage that does not turn on social utility alone. For example, the Roman Catholic Church has long maintained that the laws of nature incline human beings to want and have children and that only certain ways of doing so accord with their nature. Donum Vitae (1978) says this, for example, the gift of human life must be actualized in marriage through the specic and exclusive acts of husband and wife, in accordance with the laws inscribed in their persons and in their union.7 In this view, marriage is a way to perfect human beings in the kind of thing they are. The Vatican says additionally:
The delity of the spouses in the unity of marriage involves reciprocal respect of their right to become a father and a mother only through each other. The child has the right to be conceived, carried in the womb, brought into the world and brought up within marriage: It is through the secure and recognized relationship to his own parents that the child can

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discover his own identity and achieve his own proper human development. The parents nd in their child a conrmation and completion of their reciprocal self-giving: The child is the living image of their love, the permanent sign of their conjugal union, the living and indissoluble concrete expression of their paternity and maternity.8

The Vatican is able to make these kinds of claims because its idea of marriage is rooted in a philosophical anthropology that expresses a theory of the origins and ultimate ends of human beings. Like most other secular critics of same-sex marriage, Somerville offers no comparable account of the philosophical nature of human beings or of relationships necessary to them by reason of their natures, and without rooting marriage in that those kinds of explanatory accounts, there is no reason that it must be one thing or another simpliciter. Societies are entitled to construe marriage in ways that are useful to them, and if society nds it useful to extend marriage beyond men and women to same-sex couples, it is entitled to do so as long as there is benet in doing so and enough surety that no important social harm will follow.9 The Province of Ontario took advantage of this philosophical freedom when it struck down legal prohibitions against same-sex marriage in 2003. In the course of the legal proceedings, the Attorney General of Canada argued in favor of excluding same-sex couples from marriage by saying that marriage relates to the capacities, needs and circumstances of opposite-sex couples. The Attorney General maintained further that The concept of marriageacross time, societies, and legal culturesis that of an institution to facilitate, shelter and nurture the unique union of a man and woman who, together, have the possibility to bear children from their relationship and shelter them within it.10 The Court rejected this notion, however, by saying that no socially identiable good requires the exclusion of same-sex couples from marriage, not the nurturance of a relationship between two opposite-sex adults nor the having and raising of children in that relationship. In other words, the social purposes of marriage are not frustrated by same-sex couples, absent any deep-rooted philosophical account of the nature and purposes of human beings to the contrary. Critics of same-sex marriage might move to argue that the state does have an interest in protecting opposite-sex marriage against competing denitions of marriage, but it is unclear why such a defense should succeed. First of all, the marriages of same-sex couples do not obstruct the states interests in certain outcomes of marriage, and neither do they impinge on the marriages of oppositesex couples. As Adrian A. Wellington pointed out at a time when same-sex marriage was legal nowhere, it is hard to make the case that same-sex marriage triggers a decline in the sanctity of the institution of marriage, inconsistency with traditional denitions of family, or evenin the most extreme articulations of the positionharm in the form of a contribution to an overall breakdown in social order.11 As the Ontario court noted, Heterosexual married couples will not stop having or raising children because same-sex couples are permitted to marry.12 Nussbaum makes this same point, saying there is surely no evidence that the recognition of same-sex marriage would diminish the number of couples who

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choose traditional marriage and bring up children within that institution.13 Even if the state got out of the marriage business altogether, as some commentators like Claudia Card want it to do,14 people would undoubtedlyin the sense of there being no doubtcontinue to have children and raise them with their welfare in mind. The infertility of some married opposite-sex couples has not deterred most straight people from wanting and having children, and it is undoubtedly true again, in the sense of there being no doubtthat most opposite-sex people would continue to want children, would have children, and would care for their children even if inherently infertile homosexual couples married alongside them. If there is a moral argument to be raised against same-sex marriage it is not to be found in a metaphysically unanchored idea of secular marriage. In asserting that opposite-sex marriage is necessary to protect an intimate relationship for procreation, Somerville is reading back a denition of marriage from its social benets, as she sees them, but one must therefore ask whether this restrictive denition of marriage reects an accurate reading of those social needs. It seems to me that societies can, if they wish, open marriage to homosexual men and homosexual women who wish to commit themselves to one another in that way, and they can do so without injury to marriage itself, as Ralph Wedgwood has shown by way of identifying the core meaning of marriage: a legal status that expresses a relationship between two people, to themselves and to society at large.15 It nevertheless remains possible to argue that unless the law restricts marriage to opposite-sex couples, serious and otherwise unavoidable harms will ensue. Somerville does not argue that marriage would damage same-sex couples themselves (which would be one reason possibly sufcient unto itself to object to such marriages), but she does indicate that same-sex marriages deprive children of valuable familial goods; other commentators hold similar views. This viewthat same-sex marriage damages childrencould prevail against the idea that the state has no reason to prohibit same-sex marriages, except that this view has no support from the courts or the social sciences. Gay Men, Lesbians, and their Children Somerville seems generally set against homosexual men and women having children at all, her endorsement of civil partnerships notwithstanding.16 As she said in her 2003 brief to the Canadian Parliament, we should work from the basic presumption that children need a mother and a father, preferably their own biological parents. She also makes a stronger version of this claim: Our societies have also adopted adult-centered, as compared with child-centered, reproductive decision making. Child-centered means, among other requirements, that we should work from a presumption that, if at all possible, children have a valid claim [emphasis added] to be raised by their own biological parents. As she sees things, marriage and children are under enough threat already from the proliferation of ARTs without also opening the door to homosexual men and women who want to be parents. Somerville acknowledges that people are free to use ARTs as a matter

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of law but that, even so, society has an obligation not to facilitate the creation of situations that are not in the best interests of children. Somerville wants society to have no role in helping people create nontraditional families, and she cautions that even a social posture of noninterference could damage marriage and children. In short, various trends are harmful to the expectations society rightfully has of marriage, and same-sex marriage is among the worst of them because, aside from its inherent infertility, it undermines the best interests of children. Not only is it prudent to frame law and social policy in ways that promote and protect opposite-sex marriages as the proper moral and psychological context in which to raise children, but it isto continue this line of argumentalso the case that children have a presumptive claim to exactly that familial context. In other words, children have something like a right to be born to and raised by their genetic parents, presumably within marriage unless death, divorce, or force majeure intervene. Before we get to any kind of determination about whether married homosexual parents harm their children or violate their rights, I want to note the standard Somerville invokes to evaluate harm. She argues that those who wish to change the terms of marriage are obliged to offer evidence that children will not be ill-served by novel forms of marriage. In other words, she is invoking the precautionary principle, according to which the burden of proof for a proposed course of action falls on those making the proposal, if there is possible risk of harm from the action. The epistemological difculty with this approach is, of course, that the very evidence that would show a proposal to be safe may be unavailable because it is demanded in advance, and proposals are thus held hostage insofar as future events are concerned. In this case, however, I do not think we need to wait on future evidence to decide matters. There is sufcient evidence now at hand to reject the view that the having and raising of children by one or more homosexual parents is damaging to their welfare or rights in ways that would justify forbidding same-sex marriage where it is not yet legal or rolling it back where it is legal. U.S. courts, professional organizations, and social science researchers have already done enough review to satisfy the precautionary principle. In the past, some U.S. courts have asked whether specic homosexual parents were t to care for children in the context of custody and visitation, and these cases shed light on how courts have seen homosexuality at the time.17 In the early 1950s, a gay father lost custody of his child in a divorce but retained visitation. He appealed the courts decision in the hopes of regaining custody, but a higher Pennsylvania court said that visitation would expose his child to the mans erotic engrossment, and that court not only denied him custody but went on to strip him of visitation rights.18 In a 1959 case, a California court held that a womans homosexuality was admissible in making a determination about her rights to custody; after that holding, the court was free to hear evidence whether the womans sexuality threatened her childs welfare.19 In the late 1970s, the Washington Supreme Court upheld an order requiring that two lesbians live separately

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and apart, as provisions of divorce from their respective husbands, in the name of protecting their children from their relationship.20 In 1981, a North Dakota court said that it was not too much to expect that a lesbian give up her partner in order to gain custody of her child.21 In a 1982 case, a Missouri judge set aside expert testimony that homosexual parents did not endanger their children and went on to say, Every trial judge, for that matter, every appellate judge, knows that the molestation of minors by adult males is not [as] uncommon as the psychological experts testimony indicated.22 Also in 1982, a Vermont court said that a lesbian mother could visit her child so long as the visits involved no exposure to the mothers intimate sexual conduct and no overnight stays by the partner.23 In 1985, a Virginia court found a gay father an unt and improper custodian of his child because the man had a live-in sexual partner with whom he shared a bed and whom he kissed and hugged in the childs presence.24 In 1995 the Supreme Court of Virginia upheld a decision to take a child from her lesbian mother and put her in the custody of her grandmother. In that case, the Court said that the lower courts were justied in taking the felonious nature of the mothers sexual behavior into consideration (homosexuality was a crime in that state at the time) when giving custody of the womans child to the grandmother.25 The court noted that it had previously concluded that a lesbian mother per se is not an unt parent but then went on to say that the social effect of leaving children with homosexual parents could be taken into account in order to protect them from social condemnation that could be expected when the children live under conditions stemming from active lesbianism practiced in the home. As this brief survey shows, some individual parents have encountered an unfavorable reception in court specically because of the courts estimation of the effects of parental homosexuality on children. No court has, however, ruled that homosexual men and women are as a class unt as parents, or moved to take children from homosexual parents as matter of course. On the contrary, except for certain custody and visitation disputes, the law treats homosexual men and women as presumptively t to care for their children, and in keeping with general social trends the courts have moved toward greater accommodation and acceptance in regard to the rights of the homosexual parents who come before them. For example, in 1967, the same California court that had once allowed testimony about a womans homosexuality as it pertained to her childrens welfare, shifted grounds and held that homosexuality was not necessarily a reason to deny custody to a parent.26 In 1974, an Ohio court gave child custody to a woman, with full knowledge of her homosexuality.27 A New Jersey court came to the same conclusion in a 1980 case,28 and in 1983, the Washington State Supreme Court shifted its own prior views and explicitly held that homosexuality was not in and of itself a bar to custody or visitation.29 U.S. courts have typically treated an adults interest in having children as fundamental, something to be interfered with only when core state interests are at stake. In an era in which lesbian and gay rights were only darkly perceived, the U.S. Supreme Court declared in Skinner v. Oklahoma (1942) that the right to have

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a child is one of the basic civil rights of men.30 In 1974, a New Jersey court put the matter this way, specically in regard to gay and lesbian people: The parental rights of a homosexual, like those of a heterosexual, are Constitutionally protected. The U.S. Supreme Court has been underlining the right to have children for some time, as it did when it declared in Eisenstadt v. Baird (1972) that, If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.31 Since homosexual men and women sometimes turn to fertility medicine for help in having children it is also worth nothing that the law has not in general obstructed these efforts, and there is increasing social acceptance of this kind of practice. In 2005, law professor John Robertson argued that the basic civil right to have children exists independently of marriage and that there is no convincing reason to withhold ARTs from single people because of their sexual orientation.32 One might argue that this review shows only that courts have defended the general legal rights to have children and gone on to settle cases without consideration of the welfare of the children involved. I think this argument is off the mark in the sense that courts do recognize harm to children as a reason to remove them from their parents, as is done when parents endanger their children by exposure to drugs, alcohol, or other dangers in the home. In general, however, the courts have not invoked this rationale as sufcient to override homosexual parents interests in having and retaining children. The courts might also have pointed to possible harm to children as a way of exclude homosexual men and women from turning to ARTs for help in having children, but the courts have not moved in that direction either. These legal deliberations provide exactly the kind of evidenceif only a part of itdemanded by the precautionary principle and are therefore a prima facie reason to believe that marriage of same-sex partners can proceed without putting their children at risk. Courts do not, of course, carry out studies to evaluate the psychological, familial, and social consequences of homosexual parenting, coupled or single, in marital relationships, but social science studies have claried the welfare of children in these families. When it came time to defend the province of Ontarios original ban on same-sex marriage, the Attorney General of Canada offered no evidence from the social sciences to suggest that children are less well-off when raised by homosexual parents. On the contrary, he cast doubt on the value of the social sciences altogether by saying that social science research is not capable of establishing the proposition one way or the other. Strategically, this approach avoids introducingeven unintentionallyany evidence that might put homosexual parents in a favorable light. However, the Appeals Court for Ontario lled the argumentative void left by excluding the social sciences by saying that In the absence of cogent evidence, it is our view that the objective [of excluding gay men and lesbians from marriage] is based on a stereotypical assumption that is not acceptable in a free and democratic society that prides itself on promoting equality and respect for all persons.33

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If we actually look at the social sciences, however, they do show in reliable ways that boys and girls do well as the children of homosexual men and women. Before looking at some of that evidence, I want for a second time to introduce a comment about procedure. Before we start discussing whether homosexual parents harm their children in some way, we have to talk about what threshold should be used in making any such determination. What threshold of harm would make it unreasonable to entrust children to homosexual parentsmarried or otherwiseas a class? One possible answer is to say that a relevant threshold is met when some harm systematically befalls these children. For example, suppose researchers found that children of homosexual people are worse off than their counterparts because they typically exhibit signicantly lower self-esteem when compared to the children of nonhomosexual parents and that this low self-esteem is intractable to change. Another possible answer is to say that threshold is met not because children of homosexual parents are typically harmed but that every once in a while one of them is catastrophically harmed, for example, if some fraction of these children exhibited devastating psychiatric disorders. In each case, a presumption of benecence toward children might justify the intervention necessary to protect them against harm, and that intervention might extend to a ban on homosexual marriage if there were no less intrusive way of mitigating the harm. No evidence suggests, however, that either of these thresholds of harm are crossed when homosexual men and women have and raise children. Far from showing any kind of systematic harm, most of the studies conducted over the last twenty-ve years or so show that having a homosexual parent does not detract from a childs general well-being. Psychologist Charlotte Patterson has summarized these ndings as showing no major differences between children raised by homosexual parents and children raised by heterosexual parents in regard to self-esteem, adjustment in school, ability to form friendships, and other key factors. As she puts it, In study after study, the offspring of lesbian and gay parents have been found to be at least as well adjusted as those of other parents.34 Not only have researchers found that overall adjustment is just as good, but some research has found that on certain measures, the children of lesbian and gay parents do better than other children. One study by Susan Golombok and Shirlene Badger found that Where differences were identied between family types, those pointed to more positive family relationships and greater psychological wellbeing among young adults raised in female-headed homes [regardless of sexual orientation of the women], compared to opposite-sex couples.35 The American Psychological Association (APA) has summarized its review of the social science research this way: Overall results of research suggest that the development, adjustment, and well-being of children with lesbian and gay parents do not differ markedly from that of children with heterosexual parents.36 The APA has on several occasions offered amicus curiae briefs during court cases involving various aspects of same-sex marriage, and these documents have consistently maintained that There is no scientic basis for concluding that gay and

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lesbian parents are any less t or capable than heterosexual parents or that their children are any less psychologically healthy and well adjusted.37 The American Society of Reproductive Medicine (ASRM) issued a 2009 report that echoed the APA, when it concluded that There is no persuasive evidence that children are harmed or disadvantaged solely by being raised by single parents, unmarried parents, or gay and lesbian parents.38 The ASRM now advises its membership that fertility medicine practitioners should treat all requests for assisted reproduction equally without regard to marital status or sexual orientation.39 Some commentators argue that some of this research has been polarized in a way that papers over some differences that actually manifest themselves in the children of gay and lesbian parents in order to make headway in political arguments, but even these critics concede that social science research provides no grounds for taking sexual orientation into account in the political distribution of family rights and responsibilities.40 Some critics worry that children of gay and lesbian parents will be more likely than other children to become homosexual themselves. If so, could that be an undesirable outcome that would justify the exclusion of homosexual people from parenthood? In general, this is not a well-studied area, and studies are unclear in exactly how strong an effect the homosexual orientation of parents might have in contributing to the homosexual orientation of their children.41 The relevant reply here is not, however, the exact percentage at which this effect might occur but the observation that the effect is not objectionable if homosexuality is not wrong in itself. The law, medicine, and moral secular philosophy have abandoned exactly that view, which means it might be interesting to know how often and exactly how this effect occurs and by what pathway, but it is not one that bears directly on the ethics of parenthood by gay men and lesbians properly speaking. Since gay and lesbian marriage has come only recently to some U.S. states, most of these studies mentioned above involve, of course, the children of single or coupled but unmarried homosexual parents. It is unlikely, however, that marriageextended more widely among gay and lesbian parentswould lead to a different outcome, since these parents will have taken additional steps to secure familial relationships and thereby protect them. I suppose it could be possible that the research so far does not predict future harms to children of married homosexual parents (as against the children of individual homosexual men and women or two coupled but unmarried same-sex parents), but it is unlikely that some as-yet-unidentied harm will yet emerge. As the Massachusetts Supreme Court put it in their decision in favor of same-sex marriage:
. . . the fact remains that marital children reap a measure of family stability and economic security based on their parents legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benets are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benets that attend the presumptions of ones parentage.42

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In other words, marriage carries material and immaterial benets that are more likely than not to contribute to the welfare of children. It is hard to see how adding the benets available through the marriage of their parents could worsen the welfare of the children, children who already do well enough as it is without them. It is also worth recalling here what Nussbaum acidly pointed out, that the prohibition of same-sex marriage does nothing to promote child welfare, so construed.43 Critics alarms about the welfare of children are, therefore, scarcely justied since the children of gay men and lesbians, born with the assistance of ARTs or not, exhibit no harm that is systematic or rare-but-catastrophic. Certainly, the evidence does not show harm of an order the only remedy for which would be to forbid homosexual parents in the rst place (if that were somehow possible) or to forbid any more homosexual men and women from becoming parents (if that were somehow possible). Despite this conclusion, it is perhaps still possible to argue that children would be better off if they were the children of married, heterosexual parents, rather than children of homosexual parents whether single or coupled. Even if it were uncontestedly true that children are best served by being born into and raised by biological, married, opposite-sex partners, the standard of conceiving and bearing children only under circumstances that are optimal for them is not required in law or policy, not by a long shot. Lots of children are conceived, born, and raised in circumstances other than intact opposite-sex marriages. Sometimes marriages fail, sometimes death and disease undo marriage, and there is also no legal impediment to having a child while unmarried let alone parenting a child only after attaining adulthood. It therefore seems defensible to argue that the relevant standard of welfare to invoke when assessing the welfare of children of homosexual parents is the welfare of the totality of children as conceived, gestated, and raised by the totality of parents in all socially tolerated ways. Against this background of permissible parenthood, it seems hardly possible to argue that out of all the possible parental traits and behaviors that might harm children, only those associated homosexuality are of an order serious enough to exclude same-sex couples from marriage. It would be unclear, furthermore, why homosexual parents should be held to a higher standard of benecence on behalf of their children than all other parents. The very focus on homosexual parentage expresses a too-little-examined assumption that children of heterosexual parents more or less automatically qualify as well adjusted. In other words, the very question about the welfare of children with homosexual parents bespeaks both privilege and presumption about who is entitled to pass judgment on whom. The argument that children might be better off with married, opposite-sex parents ultimately proves too much. Is it not always possible to imagine circumstances under which the welfare of children might be better? Poor children could be imagined better off if only they had been born into a wealthy family that could offer expansive opportunities for relationships, education, and life experiences.

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Children born into wealthy families could be imagined as better off if only they had more attentive parents less absorbed in their corporate work, philanthropy, and globe trotting. It does not follow, however, that people should have children only if they can offer them an ever-receding horizon of optimal enrichments. Parents are not obliged to secure ideal lives for their children; they are obliged only to raise them in ways that preserve reasonable opportunities for a meaningful life, as against acting only in ways that would give them the best life possible (assuming the best possible life could actually be dened in a meaningful way).44 The philosophical question to be asked here is why departures from an idealized family would be signicant enough to exclude homosexual couples as a class from having and rearing of children, when those departures have precedents in the kinds of circumstances in which nonhomosexual parents conceive and raise their children. The social reality of child having and child rearing isas currently acceptedbroad enough as a moral precedent to accommodate the social reality of children born to and raised by coupled, homosexual parents. It should also be mentioned that a focus on acceptable kinds of marriage may rebound against some opposite-sex marriages. If the objection to same-sex marriage is that it is harmful to children in some morally relevant way, then as a matter of moral consistency we should probably try to evaluate whether certain oppositesex marriages should be forbidden and opposed in advance, to the extent they pose potential harm to children that is equivalent in magnitude to the harm alleged to befall children of homosexual parents. For example, why not forbid the marriages of any young people who cannot demonstrate minimal nancial preparedness to care for children. Why not forbid the marriages of two workaholics who will predictably make work a priority ahead of childcare? Once introduced, standards of tness for child having and child rearing might implicate, as possible threats, more straight parents than the lesser number of gay men and lesbians who have children. Childrens social and psychological welfare is one thing, and their rights are another, and Somerville has raised a worry that same-sex marriage violates childrens valid claim to be raised by their own biological parents. The Roman Catholic Church asserts a stronger version of this view by claiming in its 1987 Donum Vitae that children have the right to be conceived in an act of intercourse between a married man and woman45 (II, B, 4). Should they come along, Somerville has also objected to emerging technologies that would allow two men to conceive a child without recourse to ova from women or two women conceiving a child without recourse to sperm from men. (They might use gametes derived from somatic cells, which some research has suggested could also be possible for human beings.46) But how strong are the underlying claims here, that children have the right to be conceived by opposite-sex (and married) parents and raised by them to the extent possible as well? This tack is worth considering because it is sometimes used to trump the evidence that children of homosexual parents are psychologically well adjusted and no worse off than other children. Suppose that the married parents of a newborn child are killed in a car accident, and a married aunt and uncle take the child in and raise her as one of their

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own children. The aunt and uncle treat her well, no differently than one of their genetically own children. The child might have some sense of loss about the fate of her biological parents, but this problem is not traceable to her treatment at the hands of her aunt and uncle, and the child might thrive in every other way, pursuing an education, making friends, establishing romantic relationships, getting rewarding work, having children herself, and so on. Children conceived by ARTs can have the same kind of thriving lives, and although it is possible to argue that they have been deprived of a putative rightto be conceived or gestated in a particular waythat deprivation may never manifest itself in a way that amounts to an obstruction of the childs own interests or represents a failing on the parents part. In the same way, the children of homosexual parents can thrive and prosper in spite of not being conceived, gestated, or raised in a particular way, and it is philosophically confused to claim that otherwise thriving children have somehow suffered a violation of their rights.47 Marriage Banns Marriage is a ritual so deeply embedded in human cultures that it would be a grievous lapse to write a history of human culture without mentioning it; it is part of what it means to be human. But this virtual universality of marriage does not mean human beings have understood marriage in any monolithic way. In fact, marriage has unfolded across human history in markedly different ways, not only in terms of what acts or rituals constitute the threshold of marriage but also what relationships obtain between people in marriages, how children are understood in relation to their parents, and what duties parents have toward their children.48 Against the backdrop of contemporary culture, the effect of excluding same-sex couples from marriage cannot be politically, culturally, or morally neutral. By their effort to exclude some people from marriage, critics of same-sex marriage signal inequality for gay men and lesbians, an inequality that cannot be defended by pointing to a particular conception of marriage as marriage itself.49 The view that fertile men and women in couples are alone entitled to marriage can be respected as one idea of marriage among others and as an ideal that carries its own advantages, but it does not have enough moral force to override the interests of same-sex couples to have marriages of their own. It is not clear either why government ought to prefer only one idealized version of marriage so long as same-sex marriage does not obstruct its core interests, such as its duty to protect the welfare of its citizens who are children. In 2003, the U.S. Supreme Court expressed respect for the right of people to enter into same-sex relationships and even acknowledged the value of those relationships to the people in them: It sufces for us to acknowledge that adults may choose to enter upon this relationship in the connes of their own homes and their own private lives and still retain their dignity as free persons. When sexuality nds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows

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homosexual persons the right to make this choice.50 In speaking this way, the Court withdrew the state from criminalization of sexual acts between men and between women. The relevant question here is why it should not also withdraw from prohibitions of same-sex marriage, given the meaningful relationships that are possible for men and women within that institution. Despite a somewhat checkered history, U.S. law respects the rights of homosexual men and women to have children, to seek help in having children, to have custody, and to enjoy visitation when relationships break down. Moreover, the social sciences have made clear that the sexual orientation of parents does not confer disadvantages on their children in any typical or rare-but-catastrophic way. This is not to say that individual parents cannot be hurtful to their children, but that outcome is possible for parents of all sexual orientations. Nothing about homosexual orientation in parents predicts harm to their children as a matter of course, so it is prejudicial to allege that the best interests of children are incompatible with same-sex marriage. Nothing in moral philosophy entitles, moreover, children to the best imaginable circumstances of conception or birth. It is enough, morally speaking, to protect children in ways that give them reasonable opportunities to pursue lives that are meaningful and rewarding to them. The available evidence from the law, social sciences, and moral philosophy not only meets the requirements of the precautionary principle, the evidence exceeds what is required in order to move forward with same-sex marriage and to welcome children into those marriages. I want to thank the Journals two reviewers for their diligent reading of this article; the force of their intellectual resistance to certain imprecisions helped me toward a better argument. Thanks also to Scott Woodcock for a friendly read of an early version of the article. Notes
1 2

Martha Nussbaum, From Disgust to Humanity (New York: Oxford University Press, 2010), 142. Margaret Somerville, The Case against Same-Sex Marriage: A Brief Submitted to the Standing Committee on Justice and Human Rights, April 29, 2003. Retrieved July 20, 2011, from http:// www.marriageinstitute.ca/images/somerville.pdf. 3 Somerville, The Case Against, 2. 4 Halpern et al. v. Attorney General of Canada et al., 003 65 O.R. 3d, 161 C.A. 122 (2003). 5 Nussbaum, From Disgust to Humanity, 14243. 6 Ibid., 142. 7 Congregation for the Sacred Doctrine of the Faith, Donum Vitae: Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation, Replies to Questions of the Day, 1987, II.A.2. 8 Congregation for the Sacred Doctrine of the Faith, Donum Vitae, II.A.1. 9 Timothy F. Murphy, Ethics and the Prohibition of Donor Gametes in Fertility Medicine, Reproductive Biomedicine Online 18 (2009): 6067. 10 Halpern et al. v. Attorney General of Canada et al., 89. 11 Adrien A. Wellington, Why Liberals Should Support Same-Sex Marriage, Journal of Social Philosophy 26 (1995): 532; 15.

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Halpern et al. v. Attorney General of Canada et al., 121. Nussbaum, From Disgust to Humanity, 143. 14 Claudia Card, Against Marriage and Motherhood, Hypatia 11 (1996): 123. 15 Ralph Wedgwood, The Fundamental Argument for Same-Sex Marriage, Journal of Political Philosophy 7 (1999): 22542. 16 Among other things, she has said, My basic presumption is that a child needs both a mother and a father, and for society to participate in deliberately creating a situation in which the child will not have both raises serious ethical concerns. Margaret Somerville, The Ethical Canary: Science, Society, and the Human Spirit (Montreal: McGill-Queens University Press, 2004), 48. 17 Richard Green, Sexual Science and the Law (Cambridge, MA: Harvard University Press, 1992), 4445. 18 Commonwealth v. Bradley, 91 A.2d 379 (Pa. 1952). 19 Immerman v. Immerman, 176 Cal. App. 2d 122, 127 (1959). 20 Schuster v. Schuster, 585 P.2d 130 (Wash. 1978). 21 Jacobson v. Jacobson, 314 N.W. 2d 78, 81 (N.D. 1981). 22 J.L.P. (H.) v. D.J.P., 643 S.W. 2d 865 (Mo. Appl 1982). 23 Green, Sexual Science, 34. 24 Roe v. Roe, 324 S.E. 2d 691 (Va. 1985). 25 Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (April 21, 1995). 26 Nadler v. Superior Court, 255 Cal. App. 2d 523 (1967). 27 Hall v. Hall, No. 55900, Ohio C.P. Court Domestic Relations Division, Licking County (Oct. 31, 1974). 28 Belmont v. Belmont, N.J. Super. Ct. Hunterdon Cty. (1980). 29 Green, Sexual Science, 34. 30 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). 31 Eisenstadt v. Baird, 405 U.S. 438 (1972). 32 John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, Case Western Law Review 55 (2005): 32372; 327. 33 Halpern et al. v. Attorney General of Canada et al., 123. 34 Charlotte J. Patterson, Children of Lesbian and Gay Parents: Psychology, Law, and Policy, American Psychologist 64 (2009): 72736. 35 Susan Golombok and Shirlene Badger, Children Raised in Mother-Headed Families from Infancy: A Follow-Up of Children of Lesbian and Single Heterosexual Mothers, at Early Adulthood, Human Reproduction 25 (2010): 15057. 36 American Psychological Association, Sexual Orientation, Parents, and Children, July 28 and 30, 2004. Retrieved July 20, 2011 from http://www.apa.org/about/governance/council/policy/ parenting.aspx. 37 American Psychological Association, In re: Marriage Cases, Sept. 2007. Retrieved July 20, 2011 from http://www.apa.org/about/ofces/ogc/amicus/marriage-cases.pdf. 38 Ethics Committee of the American Society for Reproductive Medicine, Access to Fertility Treatment by Gays, Lesbians, and Unmarried Persons, Fertility and Sterility 92 (2009): 119093; 1190. 39 Ibid., 1190. 40 Judith Stacey and Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, American Sociological Review 66 (2001): 15983. 41 J. Michael Bailey, Behavioral Genetics, Sexual Orientation, and the Family, in Lesbian, Gay, and Bisexual Identities in Families: Psychological Perspectives, ed. Charlotte J. Patterson and Anthony R. DAugelli (New York: Oxford University Press, 1998), 318. See also Fiona Tasker and Susan Golombok, Adults Raised as Children in Lesbian Families, American Journal of Orthopsychiatry 65 (1995): 20315. 42 H. Goodridge, et al. v. Department of Public Health, Massachusetts Supreme Judicial Court 08860 (Nov. 18, 2003).

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Nussbaum, From Disgust to Humanity, 143. Timothy F. Murphy, Choosing Disabilities and Enhancements in Children: A Choice Too Far?, Reproductive Biomedicine Online 18 Suppl. 1 (2009): 4349. 45 Congregation for the Sacred Doctrine of the Faith, Donum Vitae, II.B.4. 46 Editorial, New Source of Sex Cells, Nature 452 (2008): 913. 47 The issues of rights has been eshed out in critical detail by Scott Woodcock in Five Reasons Why Margaret Somerville Is Wrong about Same-Sex Marriage and the Rights of Children, Dialogue 48 (2009): 86787. 48 Stephanie Coontz, Marriage: A History: From Obedience to Intimacy or How Love Conquered Marriage (New York: Viking, 2006). 49 Cheshire Calhoun, Family Outlaws, Philosophical Studies 85 (1997): 18193. 50 Lawrence v. Texas, (02-102) 539 U.S. 558 (2003).

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