SAME SEX MARRIAGE
THE GREAT DIVIDE
by Margaret Somerville
Somerville is Samuel Gale Professor of Law, Professor in the
Faculty of Medicine, and Founding Director of the Centre for
Medicine, Ethics and Law at McGill University, Montreal. She
authored The Ethical Canary: Science, Society and the Human
Spirit and Death Talk: The Case Against Euthanasia
and Physician-Assisted Suicide; has edited Do We Care?
Renewing Canada's Commitment to Health and co-edited
Transdisciplinarity: reCreating Integrated Knowledge. Professor
Somerville regularly consults, nationally and internationally,
to a wide variety of bodies including governments and NGO’s,
especially regarding public policy, and has served on many editorial
boards, advisory boards and boards of directors. In 2003 she
became the first recipient of the UNESCO Avicenna Prize for
Ethics in Science. This article originally appeared in the Montreal
POLYGAMY AND SAME-SEX MARRIAGE
people on both sides of the same-sex marriage debate reject
the idea there is any connection between legalizing same-sex
marriage and the possible opening up of polygamy.
example, National Post columnist Andrew Coyne wrote
on Jan. 22: "The two are entirely separable issues. The
one is about whether the general legal preference for monogamy
may be reserved to heterosexuals, or whether it must be extended
to homosexuals. The other is about whether the preference for
monogamy itself is permissible . . . The essence of marriage,
at least as far as the law is concerned, is monogamy - and not,
as others argue, procreation . . . Nothing in the legal definition
of marriage says anything about children . . . Adultery is ground
for divorce. Infertility is not."
is monogamy a purely arbitrary choice on the law's part or is
it based on some deeper reality about marriage? Does and should
marriage have anything to do with procreation? Does disconnecting
marriage from procreation, as same-sex marriage will do, make
polygamy more likely? Why is adultery ground for divorce and
not, in many (but not all) societies, infertility? Is it correct
the law on marriage has nothing to do with children?
deal with the last question first: Article 16 of the Universal
Declaration of Human Rights provides "Men and women of
full age, without any limitation due to race, nationality or
religion, have the right to marry and found a family."
In other words, the right to marry encompasses children, so
legally marriage does have something to do with procreation.
And what that something is will be changed by same-sex marriage.
Marriage will no longer institutionalize, symbolize and, thereby,
establish children's rights to be reared by a mother and father,
preferably their own biological parents.
classically the law regarded adultery as ground for divorce
for procreative reasons. The courts ruled the marriage covenant
was a promise not to surrender one's reproductive capacity to
any person of the opposite sex - that is, have sexual intercourse
with someone of the opposite sex -- other than one's spouse.
To do so was the most serious breach of the marriage covenant
and ground for divorce. The same was not true of infertility.
contrary to what same-sex marriage advocates argue, infertility,
or a choice not to have children, in individual cases does not
contravene, as same-sex marriage does, the general level symbolism
of an inherently procreative relationship that marriage between
a man and a woman establishes.
the question of whether marriage has anything to do with procreation
is central to the same-sex marriage debate in many ways, not
least because it is linked to the further question of whether
it is legally actionable discrimination to restrict the definition
of marriage to the union of one man and one woman; one's view
about the role of procreation in defining marriage affects one's
view about discrimination in excluding same-sex couples.
who support same-sex marriage argue marriage has nothing to
do with procreation, rather marriage is about publicly declared
and acknowledged love and commitment and, therefore, it is discrimination
to exclude same-sex couples. Canadian courts have largely accepted
their view. If they are correct about the nonexistent role of
procreation in marriage, then they are right that excluding
same-sex couples from marriage is discrimination. But note,
again, that conclusion depends on marriage having nothing to
do with procreation.
that's where those who oppose same-sex marriage disagree. They
believe marriage is the principal societal institution that
symbolizes, protects and nurtures the inherently procreative
relationship between a man and a woman, that is, the primary
relationship through which life is transmitted to the next generation
and within which children are nurtured and reared. In other
words, marriage is, and has always been across millennia and
every type of society, a cultural institution based on a biological
reality, that of procreation.
fact many marriages fail, and fail to protect children to the
extent one would wish, does not negate the procreative element
of marriage or children's and society's need for its aspirational,
symbolic and practical functions in this respect. In contrast
same-sex marriage severs the link between procreation and marriage
and thereby does negate those functions. That is the reason
many people who oppose same-sex marriage do so, and not because
they are anti-gay or see discrimination on the basis of sexual
orientation as acceptable. Consistently with their position
in this respect, they are in favour of civil unions that do
not affect the procreative element of marriage.
procreation as a fundamental feature of marriage also affects
the nature of same-sex marriage debate. It means the debate
can be structured, as it has been, to allow for only two possibilities:
One is either both for same-sex marriage and against discrimination
on the basis of sexual orientation, or both against same-sex
marriage and for discrimination on the basis of sexual orientation,
there are no other choices.
other words, abolishing the link between marriage and procreation
allows the establishment of a necessary link between opposing
same-sex marriage and discrimination. If marriage has nothing
to do with recognizing the inherently procreative relationship
between a man and a woman, and is only about publicly recognizing
people's love and commitment to each other, then the analysis
is correct it is discrimination to exclude same-sex relationships.
eliminating procreation from marriage raises other possibilities.
For instance, the laws against consanguineous marriage -- marrying
a close relative -- could also be challenged if marriage has
nothing to do with procreation.
that leads us to the polygamy issue. The reason same-sex marriage
opens up the possibility of polygamy is once marriage is detached
from the biological reality of the basic inherently procreative
relationship of one man and one woman, there is no longer any
inherent reason to limit it to two people whether of the same
or opposite sex.
that biological reality is removed as an essential feature,
marriage can become whatever we choose to define it as. In other
words, if marriage has nothing to do with symbolizing the basic
procreative relationship between one man and one woman, but
only with public recognition of people's mutual love and commitment,
why shouldn't three or more adults, just as much as two, have
their love and commitment publicly recognized? And if people
in same-sex relationships may do that, why not opposite sex
traditional polygamous marriage had a lot to do with procreation
and it does not negate the procreative symbolism of marriage,
although there are other powerful reasons to prohibit it. To
the extent that one function of marriage in relation to procreation
is to allow children to identify their biological parents and
vice-versa, with polygyny (one man and several wives) children
can still know who their biological mother and father are (at
least they could prior to assisted reproductive technologies
and donated gametes, and assuming no adultery - but that latter
assumption also applies to monogamous marriage); but with polyandry
(one woman and many husbands) children cannot, in general, know
the identity of their male parent (although today DNA testing
could come to the rescue). Might that be one small reason among
many larger ones explaining why polygyny has been much more
common than polyandry?
allowing polygyny and not polyandry would be to discriminate
against women and we certainly don't want that.