We are pleased to welcome this guest post from Donnchadh O’Conaill (left). Donnchadh is a Lecturer in Metaphysics at the University of Leeds. In the autumn he will be moving to Helsinki to take up a postdoctoral position on The Epistemology of Metaphysics project.
The referendum on same-sex marriage has thrown up a variety of arguments from both sides, including empirically-based claims and discussions of specific points of law. Writing as someone from a philosophical background, I was more interested in the logical manoeuvrings on either side. The pattern of the debate has been for the No side to produce the wider variety of arguments; against appeals to equality, they have offered a number of reasons to justify the different treatment afforded to same-sex and opposite-sex couples. In what follows I shall discuss three arguments offered by proponents of a No vote.
The issue of surrogacy and the possible harms to children and surrogate mothers were prominently discussed in the final weeks of the campaign. By and large the Yes side have dismissed this as a red herring: there is at present no law covering surrogacy in Ireland, and the proposed constitutional amendment would not introduce one. Prof. William Binchy introduced a new twist on this worry. Rather than arguing that surrogacy should be prohibited, he suggested that a Yes vote could prevent a future government from introducing such a prohibition:
The syllogism that a court would confront is as follows: married couples have a right to procreate; married couples include two gay men, who can procreate only by means of a surrogate arrangement; therefore, a law restricting or, a fortiori, banning such an arrangement would be unconstitutional as it would prevent the gay men from procreating by the only means open to them (Irish Times, May 12th).
There is little philosophers like better than a good syllogism. Prof. Binchy’s isn’t a bad one, but I fear it is not the syllogism he needs. The first premise, that married couples have the right to procreate, has been questioned by Oran Doyle and Conor O’Mahony; certainly, it does not seem as secure as Prof. Binchy’s article might lead one to believe. But let us grant it, and let us assume also that this right extends as far as a right to access surrogacy if that is the only means by which a couple can procreate. Given the first premise, in the event of a Yes vote Prof. Binchy’s conclusion would follow. The trouble is that this conclusion has little to do with the result of the referendum. If married couples have the right to procreate, and if this right extends as far as a right to access surrogacy by those who cannot procreate in any other way, then this right must already be enjoyed by those heterosexual married couples who, for whatever reason, cannot procreate biologically and cannot adopt children. If Prof. Binchy’s syllogism holds true in the case of two gay men, then it seems it must hold true in the case of some heterosexual couples also. In that case, the hands of any future government have already been bound, regardless of the result of the referendum.
A more unusual argument was put forward by Prof. John A. Murphy, who described the proposed amendment as “constitutional nonsense” (Irish Times, May 13th). He suggested that
if the referendum is passed, Article 41, heretofore unambiguously and exclusively heterosexual, will also recognise a homosexual couple “as the natural primary and fundamental unit group of Society . . . a moral institution possessing inalienable and imprescriptible rights , antecedent and superior to all positive law”. Moreover such a couple will be guaranteed protection by the State “as the necessary basis of social order and as indispensable to the welfare of the Nation and the State” (Article 1.2).
It is not entirely clear how Prof. Murphy’s argument is meant to proceed. On a literal reading, he is suggesting that if the referendum is successful, the homosexual family or a homosexual couple would itself become the primary and fundamental unit of society. This would be an outlandish result, but the idea that this is what would happen should the referendum be passed is based on a bizarre misreading of the constitution. Article 41 uses the term ‘the Family’, which is an abstract singular term – it does not refer to any particular family or to any group of families, but to the social institution of that name. At present under Irish law this institution includes married heterosexual couples raising their own children, married couples raising children they have adopted, and married couples who have no children. In the event of a Yes vote this institution would include homosexual as well as heterosexual couples. That is, homosexual families would be legally recognised as belonging to ‘the natural and primary unit group of Society’. This is very different to saying that a homosexual couple would itself become this unit.
It may be that Prof. Murphy meant to express a different thought: that in the event of a Yes vote, the Family would include homosexual couples, but that it is “grotesque nonsense” that such a couple could be among the fundamental units of society. This reading has the advantage of not attributing to Prof. Murphy the bizarre interpretation of the constitution I have just outlined, but as an argument against same-sex marriage it is scarcely in better shape. For Prof. Murphy owes us a reason for thinking that it is nonsense for a homosexual couple to be among the fundamental units of society. The fact that such a couple would be incapable of procreating or raising their own children would not suffice, given that numerous childless heterosexual couples already belong to the institution of the Family. Of course, one might say that such couples do not deserve any special constitutional status, but in that case the result of the referendum would again be irrelevant to one’s concerns.
The final argument I shall consider has been put forward by a number of advocates on the No side; it can be understood as concerning the meaning of marriage, or the relationship which is claimed to hold between marriage and procreation. A number of commentators have suggested that if same-sex marriage is legalised, this relationship would be weakened or even broken completely. Some critics have denied that there is any such relationship, but it is more interesting to assume that one does exist, and to inquire into what its nature might be.
Whatever the relationship between marriage and procreation is, it is surely not the case that the ability or willingness to procreate is a necessary condition for a couple to be married. Rather, the suggestion must be that the relationship between procreation and the social or legal institution of marriage holds in such a way that couples who are neither willing nor able to procreate can still marry. The problem is that on this understanding, it is hard to see how allowing same-sex couples to partake in the institution would weaken or break this relationship. The institution of marriage would still provide precisely the same opportunities and support for those who wish to procreate within it – it would just be open to a slightly larger number of people who cannot (by themselves) procreate.
There are a number of possible responses available to the proponent of the procreative link, but the main one which has been put forward in the referendum debate is that marriage must be oriented towards procreation, even if it happens that procreation does not occur or is not biologically possible. For instance, Bishop Kevin Doran claims that “What makes marriage unique is the orientation of this committed relationship to the procreation and care of children”. The suggestion is that same-sex relationships could not be oriented towards procreation, though they may share many other features with marriages. If this is correct, then it would simply be a category error to speak of same-sex marriage.
One interesting point about this argument, which has not to my knowledge been commented on, is that for someone who accepts it, the appropriate response to the referendum would not be to vote No, but to abstain on the grounds that the very idea of a popular decision on this issue makes no sense: it would be like deciding by vote whether or not 2 + 3 = 5. Leaving that aside, the orientation argument suffers from other problems. One is the danger of conflating the nature of the social or legal institution of marriage with the nature of particular marriages. It may be that the institution of marriage is oriented towards procreation (for instance, it may be because of the link between marriage and procreation that the State has a legitimate interest in supporting marriage). It does not follow from this that each individual marriage must itself be oriented towards procreation. The institution of the public library is oriented towards providing educational resources, or perhaps just entertainment, but people use public libraries for all manner of reasons, some of which have nothing to do with these noble goals.
Could it be argued that not only is the institution of marriage oriented towards procreation, but so too must any individual marriage? Maybe so, but again the trick is to spell this out in such a way that homosexual couples could not possibly be oriented towards procreation, but a heterosexual couple who are biologically incapable of procreation are. For example, Patrick Treacy & Rik van Nieuwenhove note that only heterosexual relationships “can bring forth new life”, and that “only this union is intrinsically fruitful in biological terms” (‘The Integrity of Marriage’). But not all heterosexual relationships can be fruitful in this way. From the fact that only (some) heterosexual couples are capable of unassisted reproduction, it does not follow that all heterosexual couples deserve different legal treatment to any homosexual couples.
If there is a relationship between marriage and procreation, it would appear to concern the institution of marriage, and it is most likely a link such as the following: procreation and childrearing are the reason (or one of the main reasons) why marriage was established as a social institution and continues to enjoy legal status and protection. But while this is a plausible account of the relation between marriage and procreation, it tells us little about who is (or is not) entitled to avail themselves of this institution. And that, in effect, is what the referendum concerns.