Why can’t a father marry his adult son? A mother her adult daughter?

Nearly every experienced observer expects the Supreme Court to make gay marriage a constitutional right this June. Justice Kennedy will be the key figure in this decision, as he has been in all the precedents leading up to this point. And Kennedy has made it clear that the only possible reason for opposing legal gay marriage is irrational animus against gay people. Neither he nor the other justices have adequately considered that there might be a rational basis for defining marriage in connection with procreation.

In a very helpful article at First Things today, Hadley Arkes observes that Kennedy has not considered other arguments because the Court’s conservative justices have not made them. Instead, the conservative justices have been making a narrow case based on federalism that the matter should be left to the states. But that has proven to be a dead-end and will not stop the seemingly inevitable decision to come this summer. Because of this, Arkes says that the conservative justices need to try a new tack. They need to make Kennedy explain whether there will be any limit to the principle that the Court is about to establish. If the Court rules that the law cannot privilege procreative unions over non-procreative ones, where does that end?

Arkes has basically thrown down the gauntlet to the conservative justices. Arkes says that conservative justices cannot retreat into federalism and allow Kennedy to evade the implications of his decision. Arkes writes:

The question may be put to the judges with a sharpness that hasn’t been directed to the judges themselves quite in this way in the past. And so, if Justice Kennedy, writing for the Court, sweeps away the last barriers to same–sex marriage, what will be contained in the “principle” he articulates as the ground of the decision that would indeed bar marriage to:

—the widows or widowers who would simply wish to pool their social security and savings;

—the “throuples” who wish to marry the ones they love in this three-some;

—the polygamous couples living with the consent of the participating adults in these intimate relations, still barred in the laws;

—the adult fathers and daughters, mothers and sons, invoking the words of the Supreme Court of Massachusetts and avowing their earnest interest in living with the ones they love in caring relations of “adult intimacy”;

—and finally, the adult fathers and sons, mothers and daughters.

If the court officially severs the ancient connection between marriage and procreation, then it really has no grounds for denying marriage to these other ensembles. If there is a limit to the principle, then Kennedy et al. are obligated to declare what it is in advance. So far, Kennedy hasn’t done that. And it is not too much to ask him to do so before declaring out of whole cloth a constitutional right to same-sex marriage.

Arkes’s article is thoughtful and long and well-worth the read. You can find it here.

41 Responses to Why can’t a father marry his adult son? A mother her adult daughter?

  1. Christiane Smith April 14, 2015 at 11:14 am #

    might want to reconsider that term ‘pro-creative’ . . .
    REASON: when women cease to menstruate and doctors can do nothing to stimulate or reverse that natural process, unless they have frozen their eggs (this is happening a lot now among professional women who delay marriage);
    the marriage of such women will be non ‘pro-creative’ . . . and in the sense that they are being married legally to a male spouse in a moral union where both are free to enter marriage in good conscience,
    then such couples are allowed to marry in the Church . . .

    what can be done to find terms that reflect your meaning and still take into consideration that Christian marriage is often between those who can no longer procreate ?? Ideas ?

    some thoughts, for the sake of clarity and understanding

    • Denny Burk April 14, 2015 at 11:24 am #

      You should read the Arkes article. He deals with it there. Also, that question has been answered by Robbie George et al. in their book “What is Marriage?”

      • Christiane Smith April 14, 2015 at 11:46 am #

        thank you for the reference, DENNY, concerning the Arkes article.

        I will follow up on it.

  2. Chris Ryan April 14, 2015 at 12:33 pm #

    If procreation was the test for a rightful marriage we might not have Abraham and Sarah…a couple second only to Adam and Eve in their importance to Christianity.

    Very few people today think that the primary purpose of marriage is procreation. Procreation is one benefit among many. In fact, Biblically speaking, in Gen 2:18 we see that the first reason for marriage is simple companionship. As God said, “Its not good for man to be alone.”

    • Anthony April 14, 2015 at 1:07 pm #

      The purpose of marriage from a government interest standpoint is the raising of healthy productive children. Relationships that can’t produce children aren’t any interest to government policy. Yes, some couple can’t conceive, but those are the exceptions to the rule. Government makes laws based on the most common happenstances, not the anomalies. Not all couples have children, but all children have one mom and one dad.

      • buddyglass April 14, 2015 at 11:31 pm #

        Though exercise:

        Would it be within a state’s rights to decline to legally recognize new marriages in which the female partner is over reproductive age?

        If not, then based on what principle?

        • Anthony April 15, 2015 at 1:10 pm #

          Because theoretically, the man could still produce children. If the man upholds his vows (read: monoagmous and faithful) he won’t be producing children with any other woman out of wedlock–which is universally recognized as having net negative social consequences. Also, said couple would be a model for future generations.

          However, would it be in the state’s right? I honestly don’t know, but doubt it. All I said was why government is interested in it. It’s always been understood and defined to be two people of the opposite sex. Why would a state go in and slice off a chunk of those couples?

          • buddyglass April 16, 2015 at 3:55 pm #

            “Because theoretically, the man could still produce children.”

            Not with the woman he’s intending to marry. So why is the state obligated to legally recognize their marriage if it is guaranteed to be non-reproductive? You answer that, actually. Because if the man were not married he would be more likely to produce a child out of wedlock. So they state should recognize his marriage to the barren woman because it will keep him out of trouble.

            That’s the same logic employed in favor of legal recognition for same-sex marriage. It’s alleged that marriage is a viable option then certain same-sex individuals will marry and be less likely to engage in dangerous, promiscuous behavior, with all the attendant societal costs.

      • Chris Ryan April 15, 2015 at 1:46 pm #

        Well, in a democracy voters get to decide what the “government interest” is, no? Its entirely fair that voters are coming to the conclusion that companionship is a legitimate government interest. These days lots of people get married with no intention of ever having children. There’s no reason for those couples to be 2nd class citizens.

    • Brett Cody April 14, 2015 at 3:40 pm #

      Chris,
      You have left off (conveniently?) the rest of the creation narrative which explains that God made Eve to be the complementary companion (i.e. wife) of Adam. The sexual union is the “oughtness” about the complementary union of man and woman that teaches us man was made for woman just as much as woman was made for man.

      That “very few people today think that the primary purpose of marriage is procreation” is not a compelling argument against biblical marriage.

      • Chris Ryan April 15, 2015 at 1:39 pm #

        HI, Brett, I didn’t forget it, I’m just saying that the first purpose of marriage according to the Bible had nothing to do with procreation. Homosexuality is a sin, but the argument that marriage is primarily about procreation isn’t Biblically rooted.

    • Andrew Rzepka June 27, 2015 at 11:23 am #

      He created a woman and not another man. “The Lord God [f]fashioned into a woman the rib which He had taken from the man, and brought her to the man.” Gen 2:22

  3. Johnny Mason April 14, 2015 at 12:39 pm #

    I’m not so sure Kennedy is a shoe-in to vote for SSM. The cruz of his argument in striking down parts of DOMA was that states have the authority to define marriage and that DOMA basically overruled that power by refusing to recognize marriages that a State deemed lawful. This is what he wrote in the Windsor decision:

    “The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U. S. 287,
    298 (1942) (“Each state as a sovereign has a rightful and
    legitimate concern in the marital status of persons domiciled
    within its borders”). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the
    “[p]rotection of offspring, property interests, and the enforcement
    of marital responsibilities.”
    Ibid. “[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce
    . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U. S. 562, 575 (1906); see also In re Burrus, 136 U. S. 586, 593–594 (1890) (“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States”).”

    I dont know how you can write the above opinion and then summarily ignore it by overturning that “foundational authority” given to the States.

    • Johnny Mason April 14, 2015 at 12:40 pm #

      Should read “crux” not cruz :/

  4. ian Shaw April 14, 2015 at 1:35 pm #

    But Denny, SSM supporters say that things like your example won’t happen if they rule SSM legal across the country. I mean, these are the same people that said bakers and florists and pizza parlours wouldn’t be sued or receive death threats if they chose not to produce a product or service for a gay wedding.

    Oh wait,

    • James Stanton April 14, 2015 at 3:14 pm #

      Ian,

      Are same-sex marriage supporters responsible for the glut of failed marriages, second marriages, and third marriages between heterosexuals? The trouble with your comment and Denny’s post in general is the premise. Same-sex marriage supporters care only about their own interests and not the interests of the man who wants to marry his father or the mother who wants to marry her daughter. There is no social movement or constituency for these kinds of people.

      The Supreme Court has to weigh the interests of the significant number of homosexuals who desire legitimacy from the state over the interests of some people who fear this will lead to people wanting to marry their parents.

      These kinds of arguments actually make it much easier for people on the fence to dismiss the superiority of Biblical marriage.

      • ian Shaw April 14, 2015 at 4:13 pm #

        James, you’re exactly right. They care not for the open-ended legislation that they are pushing to create and the baggage that will accompany them during the journey.

        I’m not claiming that all the failed, multiple marriages, etc., aren’t a major problem. They are. Are you claiming “well, divorce is rampant, etc., this probably isn’t in the best interest for society, but we’ve screwed it up so much already so who cares?”

        Leaving Pandora’s box wide open, for the mere fact that (collectively) we broke the locks off, doesn’t make sense either

        • James Stanton April 14, 2015 at 5:47 pm #

          I don’t think anything other than Biblical marriage has any place in my ideal society. But we don’t live there.

          I just have some trouble with arguments that homosexuals shouldn’t be allowed to “marry” because historically taboo actions might potentially become legal in the future. This is an insecure argument. We should expect that the future will be worse and even more deviant.

  5. James Bradshaw April 14, 2015 at 1:59 pm #

    Has anyone seriously petitioned the courts to marry their own offspring? Even if they had, saying no only eliminates one person from their prospective mates, not half the population of America.

    Try again.

    • ian Shaw April 14, 2015 at 2:04 pm #

      James,

      No disrespect and I’m only trying to understand your statement/argument, but couldn’t the court have said the same thing to those people trying to marry someone of the same gender? We’re only eliminating a small handful of individuals from marrying someone of the same gender, not more than 10% of the population.

      If there’s not law pertaining against something, people will do it. That’s the case regardless of subject matter.

      • James Bradshaw April 14, 2015 at 2:57 pm #

        Ian, my argument is that there is no orientation towards incest, per se. Someone who doesnt marry their own child still has an enormous number of potential mates within that gender. Besides, there are numerous secular arguments against sexualizing a parent child relationship that would be upheld n the courts.

        I’m not saying that any relationship is beyond legal scrutiny just because it’s consensual. That’s just it though. Gays have defended their position in numerous courts, and they’ve apparently been persuasive.

      • Anthony April 15, 2015 at 1:12 pm #

        more like 3%.

    • David Powell April 14, 2015 at 2:25 pm #

      That’s weak.

  6. David Shane April 14, 2015 at 2:43 pm #

    This is such a strange debate – because it is really a linguistic one as much as any other, and at the end of the day all we’re going to end up with is a word (“marriage”) that, as far as the culture is concerned anyway, means whatever you want it to mean and therefore means nothing.

    • Brett Cody April 14, 2015 at 3:47 pm #

      David,
      That is the aim of Satan, isn’t it? He desires to bring the God-instituted covenant to nothing.

      It should not surprise us. It just means we must continue to uphold and treasure what He has instituted.

    • James Bradshaw April 14, 2015 at 4:17 pm #

      Personally, I’ve never had an issue with using an alternate name for gay legal partnerships (so long as the legal rights and obligations were the same): domestic partnerships, civil unions or some made up word.

      I understand that, to gay couples, their marriage is the same in all the ways that matter as it is for heterosexual couples, but I don’t think they’d say that gender is irrelevant to that partnership. If folks want to use to different names so that there’s no room for ambiguity in regards to the gender of your spouse when asked if you’re “married”, I couldn’t care less.

  7. buddyglass April 14, 2015 at 11:23 pm #

    “the widows or widowers who would simply wish to pool their social security and savings;”

    As far as I can see, nothing is stopping these folks from marrying right now. In every state.

  8. Jonathan Bee April 15, 2015 at 12:59 am #

    people that pick and choose and disobey commands on roles for men and women
    have no grounds to be against a father marrying his son etc…
    if you pick and choose and call yourself a follower of Christ
    so can a man who wants to have sex with his son…

    • Mike Norman April 16, 2015 at 12:56 am #

      Jonathan: I have only been aware of your band of Complimentarian Extremist for a week or two… but I am already weary… First, you are incredibly judgmental and second, your arguments have no logic… If I do the dishes as an act of love for my wife I cannot be opposed to a man having sex with his son… really?

      • Jonathan April 16, 2015 at 1:52 am #

        It is…
        It is…

      • Jonathan Bee April 16, 2015 at 1:57 am #

        You hate my brand?
        This is the bible brand
        Named me one godly male house husband in the bible…
        Even Jesus a sinless and most sacrificial Man learnt his fathers trade
        Not his mother’s which would have been home making…
        If the biblical brand is offensive to you
        Do you see how it feels to gays who are also excluded?

        • Lynn B. April 17, 2015 at 4:39 am #

          JB: Jesus washed the feet of the disciplines; the task of the lowest slave.

          • Jonathan Bee April 17, 2015 at 5:10 am #

            So?
            That means we can reverse roles?
            Because Jesus showed humility
            Gender does not exist?
            What kind of logic is that?
            There are no ethics because Jesus showed humility?
            If you can pick and choose and choise feminism
            Then those people can choose gay rights!!

            • Lynn B. April 17, 2015 at 1:51 pm #

              Jonathan: I do not personally know any couples who have reversed roles. I do know many people whose preferences, circumstances, and sanctification take a different course than mine and God in His mercy has been teaching me not to sit in judgment of their hearts and lives like a Pharisee.

              Matthew 7 tells us the splinter in the eye of our brother will appear to us to be much greater than it truly is while we have a beam in our own eye and I have found that to be true. When I am invested in dying to my own sinful flesh, I do not have the time or energy to micromanage the lives of other people if only in my heart.

              • Lynn B. April 17, 2015 at 1:56 pm #

                Jonathan: Do not confuse biblical principles with biblical law. Sex outside of marriage is always sin, there is nothing to discern or discuss, it is black and white. Biblical principles about family and home life are just that, principles, which can have broad and varied applications. The 1950s housewife is not found in scripture and did not much resemble the Proverbs 31 woman.

                • Jonathan Bee April 17, 2015 at 3:39 pm #

                  Oh so now breaking a command is no longer a sin as you can call if a principle…

                  Where does it say this in the bible?
                  That half the instructions are principles you can break…
                  The P31 woman was committed to home and husband first , not making her husband do her duties under the guise. of hardship

              • Jonathan Bee April 17, 2015 at 3:36 pm #

                Unless one is gay
                Then you seem to have all the time and energy to micromanage…

                Sorry you cannot pick and choose
                If you tolerate feminism
                You tolerate gay marriage

  9. Nathan Cesal April 15, 2015 at 2:28 pm #

    “Neither [Kennedy] nor the other justices have adequately considered that there might be a rational basis for defining marriage in connection with procreation.”

    Yeah, I’m sure they missed giving this adequate thought, as if that could be the only reason for them to reject the idea.

    • Ryan Davidson April 17, 2015 at 6:31 pm #

      I think there’s some justification for distinguishing between committed bilateral relationships that involve procreation and those that don’t. Many civil-law countries in Europe make such a distinction. Opposite-sex couples who don’t intend to procreate merely opt for a registered partnership.

      But there’s not a single American jurisdiction that conditions marriage on procreation, or even on an intent to procreate. So, if we’re going to let grandma “marry” her 75-year-old boyfriend down the street, it seems that you have to extend the same privilege to Thelma and Louise.

  10. Ryan Davidson April 17, 2015 at 6:15 pm #

    The Arkes argument largely fails because it operates with an idealist assumption about the nature of jurisprudence, i.e., that laws exist to further some kind of moral ideal.

    As conservative legal scholars have persuasively demonstrated over the past few decades, the idealist jurisprudential thesis fails. It fails as a way of explaining the common law, and it fails as a basis for making new law. Sound jurisprudence requires a realist epistemology. And, unless we believe that our thinking can escape the effects of the Fall (as Catholics wrongly suggest), then Christians ought also to demand that jurisprudence rest on realist assumptions.

    From a realist perspective, civil marriage exists for the purpose of creating a collection of default rules that reflect the culture’s settled expectations for an extant social arrangement. It’s a contract with the terms already filled out, such that the couple can opt into a set of fixed rights and obligations merely by obtaining and executing a marriage license. Thus, whenever a certain social arrangement becomes sufficiently common and is practiced in fairly similar ways across the spectrum of such arrangements, certain settled expectations begin to emerge as to what that that social arrangement entails. In such cases, default rules typically emerge to account for those settled expectations, thereby allowing the law to conform to settled expectations and to reduce transactional inefficiency.

    In the case of incestual relationships and polygamous relationships, there’s no predominant pattern in the way that such relationships are practiced. So, there’s no need to create default rules, as few parties to these kinds of arrangements would be happy with the default rules. These arrangements largely arise in peculiar circumstances, and the nature of the relationship varies widely from one such relationship to another. The same was once true for same-sex relationships as well. But in recent decades, same-sex relationships have begun to conform to a fairly standard pattern. And that pattern doesn’t appear to differ too much from the patterns lived out by opposite-sex couples who can’t (or elect not to) procreate. Therefore, from the perspective of this evangelical legal realist, it’s hard to see where there’s a rational basis for continuing to deny same-sex couples the opportunity to avail themselves of the collection of default rules that we call civil marriage.

    Efforts to withhold such benefits have largely centered around concerns about the moral propriety of the sex that may (or may not) occur between the parties to a same-sex marriage. But, in view of the fact that there’s nothing illegal about gay sex between consenting adults, it’s hard to see how the state has any interest in enmeshing itself with such concerns. Bans on same-sex marriage implicitly invite the state into the bedrooms of same-sex couples for the purpose of regulating private sexual activity that is otherwise legal. Regardless of what one believes about the moral propriety of gay sex, many of us agree that, in view of the stable pattern of same-sex coupling that has emerged, it is unwise to confer such power onto the state. For that reason, this conservative is content to see bans on same-sex marriage struck down as an excessive intrusion of the state into the private lives of its citizens. In my view, Lawrence v. Texas sealed the deal on this question a long time ago. In fact, it wouldn’t surprise me if this doesn’t turn out to be an 8-to-1 or a 7-to-2 decision.

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