CULTURE

How Same-Sex MarriageMakes Orphans of Us All

The ideology that denies the meaningfulness of biological ties for human identityis called same-sex marriage.

In a thoughtful essay ten years ago (Family History), New YorkUniversity philosophy professor David Velleman indicted both thepractice of creating children intending to sever them from theirbiological parents, and the excuses adults offer to justify this.

The new ideology of the family is needed . . . for cases in which peoplewanting to parent a child cause one to be conceived with donatedgametes. That this child cannot be parented by one or both of its biologicalparents is not a disadvantage that its custodial parents volunteer tomitigate; it was a desideratum that guided them in creating the child, tobegin with. Not being attached to a partner with whom they could befertile, they needed a child who was correlatively unattached, a childalready disowned by at least one of its biological parents. Rather thanadopt a child whose ties to its biological parents had been ruptured afterconception, they intentionally created one for whom those ties wereruptured antecedently. This choice would be morally problematic ifbiological ties were genuinely meaningful. Hence the need for an ideologythat denies their meaning.

The ideology denying the meaningfulness of biological ties for humanidentity is called same-sex marriage.

The Biotechnical Revolution and the Isolated ChildThere is a biotechnical revolution upon us that treats children asproducts to manufacture. In the United States and around thecivilized world, individuals flip through catalogues or search onlineto purchase sperm and eggs from (usually anonymous) donors whose

Its going to beheartbreaking forhim to grow up andrealize he hasntgot a mummy,

Commerciallyarrangedreproduction alsoabolishes thetogetherness ofmother and fatherin the actculminating in thechilds origins.

genetic characteristics they find appealing. These shoppers then hirelab technicians to create embryos for implanting in a womb, often of aleased surrogate, for purchaser retrieval after gestation completes.

Thereby do these people manipulate childreninto existence in a manner divorced frommarital love, in which adults intend todeprive them of relationship with orknowledge of at least one, and perhaps both,of their biological parents, as well as theirextended kin.

This practice of human reproduction withoutrelationship, of reproduction arranged bycommercial transaction with service providers, graphically instantiatesthe precepts of same-sex marriage ideology. By eliminating thehusband-wife marital norm, that ideology sunders even the conceptualconnection of the marital union and fertility.

Commercially arranged reproduction also abolishes the togethernessof mother and father in the act culminating in the childs origins.Indeed, in theory (and ordinary practice) the mother and father arestrangers to each other. A typical case involves individuals who selltheir gametes intending to never know or be known by their childrenor co-parent. So also with another alien to the marital relationship: thesurrogate; her womb is not understood as a natural component withinthe relational complex of marriage and motherhood, but as autilitarian machine to be leased and exploited by those with theeconomic advantage to do so and the wish to summon a child intobeing for their custody.

Elton John having obtained his kids this way,he recently (and vehemently) defended thiscommodification of persons. But hiscomments from a few years ago reveal adifferent perspective. His sons life initiated

Elton John said.

To obliterate thesexual-differencefeature of marriageis a radicalrepudiation of itscharacter and,ominously, of thecharacter of thehuman person itacknowledges andprotects.

when a lab tech combined the sperm of SirElton or his partner with a donor womans egg. The boy gestated in yetanother woman, a surrogate in California, who relinquished him uponbirth.

Its going to be heartbreaking for him to grow up and realize he hasntgot a mummy, John stated. (The boy does have a mummy; its just thather exile was the principle aim of his purchase contract.) Sir Eltonstransitionfrom acknowledging the loss he imposed upon his son tostridently defending the manufacturing model of child-creation and allit entailsis an anecdotal exemplar of the move logically required of asociety that redefines marriage to make the husband-wife relationirrelevant to its composition.

Vive la Diffrence Versus Egalitarian DehumanizingThe Supreme Court in the not-too-distant past observed: Physicaldifferences between men and women are enduring: [T]he two sexesare not fungible; a community made up exclusively of one is differentfrom a community composed of both. Well, yes. One might think suchself-evident truths remain publicly relevant, but it is now anyonesguess whether the Court is about to make that truth illegal for states toacknowledge and act upon.

The defining feature of the historic marriagecommunity, after all, is the sexual differenceof its non-fungible constituents. To obliteratethe sexual-difference feature of marriage isnot a charitable expansion of its borders, buta radical repudiation both of its characterand, ominously, of the character of thehuman person it acknowledges and protects.

The change in civilization that stipulatesmarriage as sexually undifferentiated, thatdenies the deep human relevance of beingmale and female in relationship, necessarily entails redefining parent.

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By redefiningmarriage, the lawmust make someother moves, amongwhich is valorizingthe technologicaland other

For if marriage is to be the egalitarian institution of adult rights nowinsisted, rather than a relation founded in sexual difference and child-regard, the requirements of equality mean (although this implicatesan enormous irony) that same-sex couples get to have and raise kids,too.

But couples of the same sex dont and cant do anything procreativewithin their relationship. So by redefining marriage, the law mustmake some other moves, too: among which is valorizing thetechnological and other innovative takes on parenthood, equalizingtheir status with that of the natural-relational process. That means thelaw must ratify as normativenot tragic or exceptionalboth adoptionand the technological production of children from gametes and bodiesgathered from outside the partners union. In such case, the law denies(among other things) that childrens identity is, in any sense that couldbe legally prioritized, as the natural issue of the joining of their motherand father. Therein lies the acute alteration to the governinganthropology required of societies adopting same-sex marriage.

So not only does same-sex marriage ideology redefine parent, but alsochild. For on its account, a child comes into the world not naturallyrelated to anyone, but only transactionally connected to the personsresponsible for fetching him through various means. No child in asame-sex household derives from the relationship of the partners inthat home; every such child has been torn from at least one parent.Rather than a childs dissociation from parents being a tragedy, it is anecessity and design feature of the same-sex regime.

The same-sex ideology, then, presents anunsettling logic that forbids us to even knowthat an orphans condition as an orphan issomething to mourn. This nouveauanthropology presents children as, inprinciple, individuals as such, with nonatural relation to or necessary identitybound up in their biological mother and

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innovative takes onparenthood.

father.

If that truthfully describes their identity, thentheir continuing detachment from biological parents is trivial. Andtheir assignment to homes (foster, adoptive, or orphanage) is notsomething we properly may classify as a deviation. In fact, it might bethe most enlightened sort of condition for children, as it more vividlyincarnates their liberation from assumptions insensible except interms of the now-renounced marriage model that assigns childrensidentity and place with their mother and father.

Same-sex marriage is not just an upheaval in rules. It changes thestructure of interpretation. It forbids us to know things we used to beallowed to take for granted.

Legal Archetypes and the Social OrderHow a society knows and remembers is a function of its cultural andlegal institutions and the performances associated with them, whichsustain mores and structures of conceptual plausibility. Upon alteringor abolishing the legal mechanisms that convey the central culturalnarratives, and replacing them with different models, we remap theauthorized pathways of thought for the community. In shaping aninstitution like marriage, public authorities work by defining the realmof cognitive possibility for individuals as much as through externalpolicing, Nancy Cott writes.

In discussing torture, philosopher and law professor Jeremy Waldronhas focused on the function of archetypes in our law. He asserts thatthe prohibition on torture is just such an archetype, emblematic ofour determination to break the connection between law and brutalityand to reinforce its commitment to human dignity even when law is atis most forceful and its subjects are at their most vulnerable. If wediscard the torture ban, much more is inevitably relinquished with it;other concepts unravel that were previously held together by thatbright line. Waldron explains:

Once an archetypeis removed fromlaw, the principlesthe archetypeembodied and heldin place have losttheir authority asconceptualpolestars.

the life of the law depends, in large part, on argumentation. . . . In law, wedont just argue pragmatically for what we think is the best result; weargue by analogy with results already established, or we argue for generalpropositions on the basis of existing decisions that already appear toembody them.

Once an archetype is removed from law, the principles the archetypeembodied and held in place have lost their authority as conceptualpolestars. Thus our ability to make [effective] arguments of a certainkind vanishes. Conversely, those ideas that the archetype classifiedbeyond the pale are now loosed to overhaul the affected area of law interms of their rival precepts. [T]he demise of an archetype sends apowerful message about a change in the character of the relevant law.

If, in the name of equality, the SupremeCourt this summer constitutionalizes anational mandate for de-sexed marriage, it isunclear how the Court thereafter could avoidcleansing its own caselaw of its unequalpreferential treatment of biological parents.Or how Congress in the exercise of itsFourteenth Amendment Section Fiveenforcement authority wont be within itsrights to banish from state domestic relationslaw those policies based on biological bond favoritism or thatotherwise imply a legally cognizable significance to kinship relations. Aruling that traditional marriage law is illegal invites an avalanche.

Former Chief Justice Warren Burger observed that in constitutionaladjudication some steps, which, when taken were thought to approachthe verge, have become the platform for yet further steps. A certainmomentum develops in constitutional theory and it can be a downhillthrust easily set in motion but difficult to retard or stop. Indeed,history itself (as Michael Hanby writes) might be conceived of as thetrain of cause and effect set in motion by our deeds but escaping ourcontrol.

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State laws thatpreserve themarriage archetypeare a commitmentto the truth ofhuman identity.

Same-Sex Marriage Denies the Natural FamilyThe refusal to countenance the sexual difference of male and femalethat is central to the marriage relation implicates more than the rosterof who will be called married. Replacing the laws acknowledgementof the essential significance of kinship and man-womancomplementarity with contingent preference and egalitarian artificemeans the government denies the pre-political and natural dimensionof the family that until now authorized its substantial immunity fromstatist interventions.

That denial is on full display, for instance, inrecent judicial and legislative manipulationof birth certificate entries to register namesof two persons of the same sex, or of three ormore persons. This innovation purports todefer to individual (adult) autonomy, but itsdarker and more basic meaning is that our

government handlers are not constrained by anything, transcendent orcreated, that would narrow their jurisdiction to meddle, divide, andisolate.

Our safety, prerogatives, and relational integrity remain secure inproportion to our intelligent efforts to maintain and defend them.These efforts include preserving public esteem for the beliefs thatundergird such conditions, which in turn require cooperative cues inlegal and social ecology. But the libertine modern man is bereft of thisinsight. He stupidly assumes our civilization is just there, like the air webreathe, rather than being a fragile accomplishment from centuries ofpurposive toil, imperiled upon neglect of its preconditions.

State laws that preserve the marriage archetype are a commitment tothe truth of human identity. It is deceptive to describe that venerablelegal standard or its supporters as manifesting animus or psychosesrather than a perfectly correct awareness that the public order and theplight of the vulnerable are profoundly at stake in this policy

installation. The conserving reflex derives from a discerning sensibilitythat manifestly eludes its belligerent critics.

The Supreme Court now stands poised to preempt legislative flexibilityand tolock into constitutional cement a radical cultural innovationbefore our society has had anything resembling a discussioncommensurate with the gravity of the proposed transformation.Should the Court carry through with it anyway, it will be shamefulthough unsurprising. Haste and folly are regular companions.

Jeff Shafer serves as senior counsel at Alliance DefendingFreedom. He has litigated public-interest and FirstAmendment cases in federal and state trial and appellatecourts throughout the United States.