[Crossposted on Family Scholars Blog.]
According to Robert George et al, the reason same-sex couples can’t marry is that they’re unable to perform “conjungal acts” or “coitus”:
The spouses seal (consummate) and renew their union by conjungal acts – acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. […] Indeed, in the common law tradition, only coitus (not anal or oral sex even between legally wed spouses) has been recognized as consummating a marriage.
Note that it’s only the “behavioral part” — that is, “coitus,” which the dictionary says is a “sexual union between a male and a female involving insertion of the penis into the vagina” — that matters to George. Whether or not pregnancy actually occurs is not relevant (which is why infertile het marriages are “real” marriages).
Which makes me wonder: If Lucy and Schroeder get married; and if Lucy is a cis woman (“cis” is short for “cissexual,” and means, in a nutshell, “not trans”) and Schroeder is a trans man; would their marriage be a “real” marriage, according to George and his cohorts?
It certainly should be, since Lucy and Schroeder fulfill the requirement; they can consummate their marriage with “acts that constitute the behavioral part of the process of reproduction.”
But my guess is that Robert George and his fellow-travelers would come up with some rationalization excluding trans people from marriage. I wonder what the rationalization would be?
Why is your question about a cis woman and a trans man? Isn’t the question, with respect to coitus, whether they would recognize the marriage of a cis woman and a trans woman (who has a penis)? I always understood the paradox of anti-SSM as it relates to trans as being that they would “accept” marriages when one partner has a vagina and the other partner has a penis, yet for couples in which one person is trans, that means they are allowing marriages that APPEAR to be SSM (cis woman and trans woman), causing problems with the “what will the neighbors tell their children” crowd, while not allowing marriages that APPEAR to be opposite sex marriages (cis woman and trans man).
Oh, you’re right, that’s another good question. (And I guess I should have specifically defined the trans in my example as someone who’s had SRS, although I think it’s implied?)
The reason I asked about an opposite-sex cis/trans couple is that the question was put in my mind by recent news from Texas (here and here).
There are really quite a lot of trans people who could have penis-and-vagina sex but whose marriages would not, I suspect, be acknowledged by Robert George et al.
To add to the pile-on, what about intersex individuals? Can they not marry anyone? Only those with compatible “bits”, regardless of gender presentation?
And do they actually have to do the deed, or just have the capability – would a marriage between a gay man and a lesbian for the health insurance be valid even if they never so much as kissed?
I think most social conservatives who are against SSM just don’t accept that someone’s sex and gender can be different. In their eyes, transpeople are confused and they need to accept their biological, “natural” identity. So if a transwoman and a ciswoman are married, the problem for them would be that the transwoman is denying her “real” gender and needs to realize that she is a man. If she refuses to do that, she’s living in denial and the marriage is built on lies. Someone like George might say that it’s a legal marriage, but not a morally right one.
Legal sex does not always match the person’s procreative potential, in other words, whether they would most likely be able to be a father or a mother of a child. Sometimes that is due to an intersexed condition or incorrect designation at the time of birth, other times it is due to a change of legal sex later in life. Marriages law has to go by legal sex, it is not up to the city clerk to determine what sex someone is, they just look at the documents. A marriage including a trans man or trans woman would simply be an infertile marriage. Publicly they’d have a right to create offspring, but privately, labs should not be allowed to facilitate what would essentially be same-sex conception.
I’ve been over all this before, many times.
Trans Rights and the Egg and Sperm Law and What is a Woman?
Apart from any other considerations whatsoever, isn’t it just easier to make marriage laws neutral with regard to sex and gender? That way nobody has to worry about what sex anyone is or anything like that: Two adults? Want to get married? Not currently married to anyone else? OK!
Seriously, it’s hard to imagine how anyone has any sort of right to know what’s in someone else’s pants or under their skirt, or what used to be there, or what might be there in the future.
“Publicly they’d have a right to create offspring, but privately, labs should not be allowed to facilitate what would essentially be same-sex conception.”
Which is not really the point of the original post, John. You’re talking about technology that doesn’t exist, and you’re the only person in the world making this argument.
Are you the same John Howard who ran for president on an “egg and sperm” platform?
There is only one John Howard and his art is irreplaceable.
And, indeed, the one and only John Howard was banned from this site long ago.
John, unless Amp specifically invited you to bring your hobby horse back to Alas, I have no idea why you think you are allowed to post here.
“But my guess is that Robert George and his fellow-travelers would come up with some rationalization excluding trans people from marriage. I wonder what the rationalization would be?”
Look, since Robert George hasn’t come here to tackle this question, why not chew on my response? I too am very interested to know Robert George’s answer, as he has carefully avoided considering transgenderism and postgenderism.
My response is that trans people would not be excluded from marriage, as the clerk would go by their public legal sex, and I believe that people should be allowed to change their public legal sex to which ever sex they feel like. Even without sex changes, there would still be people who were assigned the “wrong” sex at birth, people whose legal sex didn’t match their reproductive potential. People that everyone – including themselves – believe to be one sex, but whose reproductive potential is actually the other sex. So how could we possibly “exclude” them from marriage? So why not also allow people who have changed sex to marry as their new sex? We can’t have arbitrary lines between intersexed, “passing” trans people, and “non-passing” that’d be ridiculous. So as I said, we should allow people to change their legal sex, and the clerk should go by the legal sex, the public sex, in granting marriage licenses.
Publicly, a marriage of a trans man to a cis woman would have a right to conceive offspring, even if people supposedly knew that the man was formerly a woman. But privately, a lab should be prohibited from attempting to create offspring for them, because privately, the lab would define them as two women – two people who each would be more likely to be able to reproduce using their unmodified natural gametes as women, with men. So the lab would privately tell them they cannot help them due to the law against genetic engineering that we need to pass ASAP. They’d be just like any infertile marriage, whose reasons for remaining childless are private.
My bet as to why Robert George hasn’t addressed trans conception or same-sex conception is because he is trying really hard to avoid the term “ban” or “prohibit.” I think he is behind the “it’s not a ban” meme, which is really dumb if you ask me.
Dear John Howard,
It has come to my attention that you have continued to post here despite being banned for some time.
Your views … your fears of a GATTACA-style future dystopia, your bizarre fetish for ‘natural’ reproduction, and your cape-drawn-over-the-face hissing when confronted with the undying evils of gay parents … have no place here. More specifically, it’s anti-equality paranoid monomaniacal buffoonery, and, as such, it has no place anywhere.
Were we to allow you to stay, the fault would be ours, for in doing so we would be advertising that we have no standards whatsoever, and that this blog welcomes any fringe-figure, no matter how extreme.
For LO, as it is written in prophecy, “Better to chew broken glass than to listen to the words of John Howard, because his hobbyhorse is a broken hobbyhorse with a saddle made out of liquid nonsense.”
Anyway, my point is, you’re banned again.
Much love,
—Myca
“Oh, you’re right, that’s another good question. (And I guess I should have specifically defined the trans in my example as someone who’s had SRS, although I think it’s implied?)”
Given that an estimated five percent of trans men in New York, and 20% of trans women, are post-operative, and many more of us trans folk are non-operative, I don’t really think it’s implied.
People who want to make indefinite commitments to other people (both financial and otherwise), plus commitments to any minor children who may become involved by one means or another (birth or adoption), commitments which will be enforced by law henceforth, should be able to do so. (Not be forced to do so. Be allowed to do so.) Ask any responsible divorced non-custodial spouse whether we mean business here or not about the downsides. (All upsides have downsides.)
To say that the State has no business inquiring into peoples’ genital condition in this connection is to state the obvious. Ya think? I mean, really. Are you kidding me?
As a larger society, we support such commitments for reasons both societal and financial. We believe, for collective selfish reasons if for no other, that people should if possible form family groups where there is mutual responsibility, and where people care for each other (if for no other reason that they may not be thrown upon the public dole); we believe that the existence of such groups benefits everyone in innumerable ways. I believe all this.
We favor such commitments over one-night-stands with benefits both financial and societal because of our belief that such arrangements benefit not only the participants, but us all.