We let infertile couples get married: why shouldn’t we allow same sex couples to get married? Why should a 65 year old opposite sex couple be allowed to marry, and a 65 year old same sex couple not be allowed to marry?
The essential public purpose of marriage is to attach mothers and fathers to their children and to one another. These two questions are addressing the situations where no children are likely to result from the union.
First, there is a clear difference between what same sex couples do and what infertile married couples do. No one could have children by performing same sex sexual acts. Yet, this is not true of the type of act performed by sterile married couples when they engage in vaginal intercourse. The lack of complementarity in same sex couples is a condition that renders it impossible for them to perform the kind of act that makes them organically one. If a married couple discovers that they are infertile, this obviously does not change what they have been doing in bed. They still perform the same kind of act they have been doing, perhaps for years. The difference is not in what they do—the kind of act—but in a condition that is accidental or extrinsic to what they do, namely the fact of having become sterile.
In fact, married couples who live a normal lifespan will all become infertile eventually, just through old age. This obviously does not take anything away from their marriage. Their union is still valid and very important to their children and grandchildren and the wider society.
Second, redefining marriage as the union of any two persons, of any age or gender, leads directly to the redefinition of parenthood. Marriage attaches parents to their children and to one another through something called the “presumption of paternity.” This ancient doctrine means that a woman’s husband is presumed to be the father of any children born to his wife during the course of their union. The presumption of paternity, combined with a social and legal norm of marital sexual exclusivity, means that marriage routinely and systematically attaches children to their biological parents.
The advocates of marriage redefinition want to redefine the presumption of paternity to a “presumption of parentage.” Any children born to either partner during the course of a same sex union is presumed to be the child of both. In a same sex union, this means that each and every child will not be attached to at least one of his biological parents. Obviously, this functions quite differently from the presumption of paternity. The biological basis for natural parenthood will be undermined and replaced with legal definitions, invented and enforced by the state.
Allowing elderly and infertile opposite sex couples to marry does not require the state to redefine parenthood.
