Wednesday, 5 October 2011

Pro-creation: Legal vs. moral rights of marriage

Gay marriage advocates have challenged the necessity that marriage has pro-creative intent that excludes homosexual couples. In this post, I challenge that notion of marriage that lacks an intent to form the physical affinity upon which consanguine ties are developed.

The fact that the State permits non-procreative sexual acts between consenting adults does not mean its policies on marriage, ipso facto, encourage, or discourage those actions. Mere permission is a liberty right, or privilege provided by the State to accommodate a range of outcomes, including exceptions, just as free speech permits a variety of views that might include radical dissent from mainstream opinion. It does not trigger an automatic claim right, the duty of the State to promote any non-procreative relationship to the status of marriage, not any more than the State has a duty to promote a particular opinion because it permits its unfettered expression.

Legal permission is merely a right of conduct; permissible doesn’t prove it’s reasonable, or moral. Marriage involves more than legal permission, it claims a moral duty of the State to provide a supportive framework in relation to all of marriage’s morally worthwhile outcomes: stable families that are conducive to good society. In order to achieve this status, a non-procreative relationship must also pass the reasonableness test: are non-procreative relationships sufficiently representative of the goods of marriage to impose a reasonable moral duty on the State to support them as marriage, or should they be accommodated in another way as exceptions?

The added reasonableness test justifies moral rights over and above legal rights of conduct. For the legal rights, there is only a need to demonstrate that there is no conclusive legal reason (duty) not to do something. It is not necessary to prove the moral case: that it is actually reasonable to do it. Compare Leif Wenar on epistemic vs. legal rights

The State may consider that its policies in support of marital pro-creation and child-rearing offer sufficient incentive to couples, without making them compulsory. Other rights, such as privacy, (as in Griswold v Connecticut) may trump State regulation of marital pro-creation issues, such as birth control, not because pro-creation is a non-essential good of marriage, but that to do so would violate privacy. The absence of legally enforced measures relating to pro-creation is due to a reluctance of the State to legislate in matters of marital privacy. So what if there’s no legal compulsion for couples to pro-create? The State’s moral duty to support marriage requires that couples enter it with an understanding of its possible pro-creative outcome. Why? That’s because marriage law has been developed to meet that possibility.

It is reasonable (i.e. there is a preponderance of evidence, rather than the lack of any legal exceptions) to expect that marriages will involve pro-creation. Does the State support my right to void a marriage because it leads to pro-creation? No. In fact, the legal system assigns special claims and privileges to couples in order to support their on-going involvement in mutual loving support, pro-creation and child-rearing. The discovery of fertility or failure of a contraceptive is not a reasonable ground for divorce. Yes, you are free from state coercion to pro-create. However, that only means that there is no conclusive *legal* reason not to pro-create. Pro-creation may still be an entirely reasonable outcome that is supported by society’s moral expectations of those who marry.

The claims and privileges of marriage may be legitimately limited to a particular class of couples, heterosexual ones, in order to support their peculiar and singular contribution to a State goal: supporting the cohesive mutual private welfare arrangement that those couples provide for offspring as a reasonable outcome of procreative sex. There should be alternative equitable privileges for the homosexual partnerships and their dependents.

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