Sunday, 25 November 2012

Commenting on the Six Social Goods of Marriage cited by Monte Neil Stewart of Duke University

1. ‘The institution of man/woman marriage is quite certainly society’s best and probably its only effective means to make meaningful a child’s right to know and be brought up by his or her biological parents (with exceptions being justified only in the best interests of the child, not those of any adult)’.

Marriage provides a cohesive social framework to encourage parents to be recognised as a legal entity and privileged by the State in order to better their children in an environment that has been proven to be optimal: the biological family. It is not part of a normative role of the State to adjust the primacy of this optimal environment advanced by marriage or to endorse the view, when there is scientific evidence to the contrary, that a genderless partnership is equally optimal. Why should a relationship that lacks this optimal intent be established as the optimal environment, known as marriage? 

As Maggie Gallagher says: ‘Once we sever, conceptually, the sexual alliance and the parenting alliance, we sever children from their uncontested claim to their parents'-especially their fathers'-care and protection’. In other words, genderless marriage can normatively assign that child’s right to a non-biological surrogate and still endorse this as optimal. Even if this is in the best interest of the parents, it is not in the best interest of the child.

2. ‘The institution almost certainly qualifies as the most effective means humankind has developed so far to maximize the level of private welfare  provided to the children conceived by passionate, heterosexual coupling. Two essential realities of man/woman intercourse are its procreative power and its passion. Society’s interest relative to those realities is in assuring the provision of adequate private welfare to children. Child-bearing in a setting of inadequate private welfare corrodes societal interests while child-bearing in a setting of adequate private welfare actually advances those interests. In passion-based procreation, it is passion rather than rationality that may dictate the terms of the procreative encounter. Rationality considers consequences nine months hence, including the rearing of a child, but passion does not. Confining procreative passion to a social institution that will assure—to the largest practical extent—that passion’s consequences (children) begin and continue life with adequate private welfare is thus a fundamental and originating purpose of marriage. The immediate beneficiaries of this private welfare purpose are the child and the often vulnerable mother, but society rationally sees itself as the ultimate beneficiary’.

The law is not only there to protect and mediate, it is there to educate society by investing in children. It does so by legally recognising and endorsing the union of biological parents as the optimal way to invest in their children. There can’t be two optimal ways to invest in the private welfare arrangements of the child, one must be sub-optimal. The counter to this is the view of marriage as emotional intimacy. Maggie Gallagher explains it this way: ‘One view of marriage is that it is a personal right, of the individual, created by the individual, for purposes which the individual alone defines. When two individuals happen to have desires and tastes for each other that coincide for a lifetime, that is beautiful. If not, it is simply no one else's business.’ It begs the question that if marriage is simply a personal arrangement, why would the State be involved, or why marriage should require intimacy. What is the public good of endorsing a relationship that lacks the consequence and import of the social goods mentioned thus far.

3. Man/woman marriage is the irreplaceable foundation of the child-rearing mode—that is, married mother/father child-rearing—that correlates (in ways not subject to reasonable dispute) with the optimal outcomes deemed crucial for a child’s—and hence society’s—well being. These outcomes include physical, mental, and emotional health and development; academic performance and levels of attainment; and avoidance of crime and other forms of self- and other-destructive behaviour such as drug abuse and high-risk sexual conduct’.

If our politicians strip away all references to gender in marriage, and re-define it as any social pairing, it fails to endorse through law the optimal environment for child-rearing. They are saying that any and all sorts of pairings (which beyond five years can be ended by individual discretion) are equally optimal. While data on comparative outcomes for children raised by homosexuals may be sparse, the study led by Mark Regnerus of the University of Texas Austin's Population Research Center reported lower income levels, poorer mental and physical health and more troubled current romantic relationships than those of heterosexual marriages. Critics claim that sample sizes are not indicative of the entire population. Yet, those who cite an earlier study that found no differences had no problem with comparing the children of affluent, well-educated homosexual parenting with single-parent heterosexuals. At the very least, the evidence would suggest caution and prompt government funding for further research. To ignore the evidence and undermine the optimal environment for child-rearing by presenting same-sex relationships as equally conducive to child-rearing is completely irresponsible.

4. Man/woman marriage serves as an effective bridge over the male-female divide. “Marriage has always been the central cultural site of male-female relations” and society’s primary and most effective means of bridging the male-female divide—that “massive cultural effort of every human society at all times and in all places.”

The physical demands of pregnancy and supporting early child development require complementary responses from male and female spouses. Marriage normalises and reinforces the society’s support in maintaining those complementary roles. Children prepare for these roles by seeing good examples and the status accorded to those roles through the social prestige of marriage. It promotes interdependence between men and women, rather than child-rearing devoid of the paired commitment of both male and female biological parents.

5. Man/woman marriage is the only institution that can confer the status of husband and wife, that can transform a male into a husband or a female into a wife (a social identity quite different from “partner”), and thus that can transform males into husband/fathers
(a category of males particularly beneficial to society) and females into wife/mothers (likewise a socially beneficial category).

Marriage is the springboard of recognised kinship. It established the shared privilege of the dual role of spouse and parent. Genderless marriages cannot maintain this dual role on the basis of two congruent biological outcomes: consummation and child-birth.

6. Legally recognized and privileged man/woman marriage constitutes both social and official endorsement of that form of adult intimacy—married heterosexual intercourse—that society may rationally value above all other such forms.

Man/woman marriage uniquely delivers genetic diversity within stable permanent pair-formation to society. This diversity promotes genetic variations that ensure human survival, whereas genderless marriage doesn’t. It should not be promoted through marriage to society as delivering the same outcomes. The current framework of civil partnerships delivers equivalent legal and social recognition to homosexual couples. The European Court of Human Rights has declared that its interpretation of the European Convention of Human Rights entails no right of homosexuals to marry.

Wednesday, 14 November 2012

VALID MARRIAGE – A formal exposition

The validity of a marriage is determined by the society's belief that the permanent sexual union of two legally competent partners creates a new line of socially beneficial kinship. This cannot be established by political fiat alone. It is based on nature and tradition, by which I mean congruence with the natural and customary extension of society.


Our society's recognition of those actions that form permanent kinship by extending and morally interlocking existing families is rooted in human biology and history. If we heard a government minister claim that permanent kinship would now be predicated upon a kiss, or a hug, it would not change the social understanding of kinship: that kinship is inextricably linked to the history of human survival.

As a minimum, our kinship system is geared towards society recognising and investing in human survival. This is the cause of marriage, the development of a new line of permanent kinship geared towards human survival. In contrast, the motives of those getting married can and do differ.

Motive and cause in marriage law.

Motive and cause have different contractual meanings. Gay couples can lay claim to the same loving motives for marriage as a heterosexual couples. Nevertheless, by constitution, the relationship opposes the cause of marriage, i.e. the chief reason which society uses to determine that the promises of marriage should be permanent and legally enforceable (what society recognises that those who marry must agree to). The reason is not to enforce love. It can't, so love is not the legal cause of marriage. However, it can ensure that those who claim its support and validation as marriage cannot abdicate their responsibility to their spouse, offspring and extended family without cost.

Marriage laws enforce commitment to support all legitimate outcomes of the marriage jointly. It imposes a cost upon anyone who marries and then abandons that kinship arrangement.

Genetic diversity.

Marriage imposes a perpetual legal obligation that is predicated upon the outcomes of permanent exclusive union. Both forms of kinship (by marriage and by descent) are so closely related (cf. inheritance and incest laws) that they need to be congruent with each other. For example, close relation marriage is banned because it is incongruent with and opposes genetic diversity.

For our society to thrive, genetic diversity ensures that there is sufficient 'variation to ensure that some individuals in a population will possess variations of alleles that are suited for the environment'. The counter-argument that the world is already overpopulated cuts no ice. If a society does not maintain genetic variation, it can't survive upheaval and sudden environmental and habitat changes.

Homosexual relations are incongruent by constitution with genetic diversity. A different more potent same-sex pairing cannot further our society's genetic diversity. They are void of the goal of marriage: biologically predicated kinship.

The societal investment in same-sex relationships to the extent of calling them marriage does nothing to further the cause of marriage: the genetic diversity of society. They are largely privately beneficial relationships compared to the societal benefits of permanent heterosexual union.


Consummation is the fulfilment of the inaugural legal intention of a contract. The law neither dictates exactly when this should happen, nor that it must result in offspring, but it does view it as a reasonable legally supported expectation of both parties to marriage. At the very least, the vow of fidelity is a commitment to the physical act of kinship-forming union with one person. There may be other acts, but 'ordinary and complete' intercourse is the minimum expectation (case law: D v A (1845) 163 ER 1039)

The fact that there are exceptions (through age and impotence) is an issue of individual incapacity that cannot be established in terms of changing universal rules for constituting all valid marriages. It does not mean that marriage should be constituted for the exceptions without qualification.

In fact, this is the converse accident fallacy: that one carefully qualified exception justifies an unqualified change to the general rule.

If consummation has never occurred owing to the permanent incapacity of one partner, or the refusal of one partner, it opens the marriage contract to the possibility of annulment: invalidation from the date of the wedding.

Annulment as a remedy.

Is annulment important? Annulment means that the requirements of the contract have no legal effect. It is not simply an aspect of marriage law, any contract can be voided for fundamental incapacity or non-performance of either party. This is fundamental to all contract law.

Void ab initio (from outset) contracts are those which demonstrate that at the outset both parties lack the capacity to be bound by the common legal expectations of the contract. The difference with marriage is that those expectations are established by long tradition and case law.

Void marriages are invalid marriage contracts. For instance, if either party is under 16, already lawfully married, if parties are not of opposite sex, or within prohibited degrees of relationship, the constitution of the marriage is deemed invalid from the outset.

Voidable marriages are open to be avoided by either party, unless the petitioner knowingly accepted the incapacity or deception, once it was revealed. There are defects of:

1: Form: the marriage was not solemnised lawfully;

2: Contract: if either party lacked the intent or capacity to enter into a lifelong kinship-forming sexual union, as evidenced by consummation;

3: Consent: If either party was coerced, or deceived, or mentally incapable, so that they lacked willingness, and therefore lacked intent.

Annulment releases the petitioner from any legal claim from the respondent to divide assets equally or provide on-going spousal support. It is as if the exchange of consent had not occurred. It may be granted immediately and back-dated to the wedding ceremony, whereas divorce currently requires a minimum of 1 year’s marriage, 2 years by mutual consent, 5 years without consent.

In spite of secularisation and 'no-fault divorce', if divorce is the only remedy for an innocent party, deceived, or denied coitus as a reasonable expectation of marriage, it carries an unacceptable stigma that the petitioner's behaviour in the matter was not completely above reproach.

Even if non-consummation was treated as evidence of unreasonable behaviour, divorce would still make the petitioner liable to claims for division of assets and spousal support. However small the minority, it is grossly unfair to force those who would have petitioned for an annulment to endure the stigma of divorce. Voiding the marriage is the proper remedy for deception, duress or refusal or incapacity to consummate.

Annulment is an important remedy for voidable contracts of all kinds, including marriage. It should not be abandoned to provide a consummation-free definition of marriage. It is not fair to re-define consummation without gender references (which is too vague and open to judicial misinterpretation). It is not fair to remove consummation as a ground for voiding marriages in which one partner denies or is incapable of sexual union.

What you can't do is have disparate standards of consummation for the single estate of marriage, whether it is entered by civil or religious means. Just as there is only one status of British citizenship regardless of whether it is entered by birth or naturalisation.