Uncivil Unions: Unequal Protection

by Anon

In this article, James Antle argues that the seemingly anomalous results of interstate custody battles over children of civil unions is due to the creation of an institution to parallel marriage, but which does not take child rearing as its central purpose. In the case he discusses (Miller-Jenkins v. Miller-Jenkins) a lesbian couple entered a civil union in Vermont, had a child by artificial insemination, and then split up. The biological mother now lives in Vermont Virginia  with the child and the non-biological mother lives in Virginia Vermont with the child, and has gained custody largely due to Virginia’s rejection of any legal validity to the status of civil unions. (Edited 2/14. Thanks for the comment, Mr. Antle)

First of all, Antle’s article presupposes that civil unions are somehow less concerned with child rearing than heterosexual marriages:

“a new definition of marriage that does not consider childrearing very important is especially likely to subordinate children’s interests to adult desires. When a woman with a troubled family history enters into a relationship with another woman and conceives a child with a stranger’s sperm, potential difficulties are easy to foresee. Yet an increasing number of states want to rewrite the basic assumptions of the family to accommodate such arrangements.”

Marriage is supposed to provide stability to a relationship, in large part for the sake of the children involved and that very purpose is denied as a central feature by those who would oppose marriage equality. The argument proves too much. Even if Antle were right, and the damning feature of civil unions were that they did not consider child rearing “very important,” the solution would (by hypothesis) be to provide a union with better values, namely, true marriage. It is disingenuous for Antle to denigrate the institutions available to homosexuals as lacking values, while denying to the same people a readily available institution that would fulfill his criteria.

Second, his article demonstrates that the damning feature of civil unions is not some lack of values, is inequality per se. There are two ways to attribute values to an institution; realistically and legalistically. Realistically, there is no reason to suppose that a smaller proportion of homosexual couples are interested in raising children than heterosexual couples except by imputing different values to relationships that are equally capable of child rearing as any infertile couple. But that begs the question. After all, it is the relationship at issue, not biological reproduction.

Legally you can, in fact, argue that civil unions have different values than heterosexual marriage, but only by reference to the incentives provided to, and purposes the legislature had in creating, those unions. Is there a child credit? How do the laws provide for divorce? Etc. If the answer to any of your value-probing questions is different for civil unions than it would be for heterosexual marriage, you have just demonstrated that you have a separate and essentially unequal institution. Remember why civil unions exist at all: because some states were worried that they might actually have to provide Equal Protection to homosexuals. They were a sham when they were created, and they are a sham today.

Finally, the article is just dripping with contempt for the idea that a non-biological mother could have equal status as the biological mother. If the author were to realize that homosexual couples are not so different from heterosexual couples, he would realize that for the child’s sake neither can be presumed, ex ante, to have a superior claim to custody. If he were willing to attribute the same values to this couple as he would to a heterosexual couple, he would realize that theirs is just a relationship like any other that yields the same unhappy results when it falls apart.

Keep buy essay your answers to these two questions in your mind as you are writing your sales copy.
Published in: on February 13, 2007 at 12:49 am Comments (4)

4 Comments

  1. On February 13, 2007 at 9:00 am Taimyoboi Said:

    “The argument proves too much. Even if Antle were right, and the damning feature of civil unions were that they did not consider child rearing “very important,” the solution would (by hypothesis) be to provide a union with better values, namely, true marriage.”

    Quite the contrary, I think the author assumes too much. The solution, and Antle would probably prefer, could equally be to do away with civil unions completely, and not to expand the reach of marriage. This would do away with a legal culture that the author correctly identifies as offering a less value-laden type of union.

    And, since a legal culture can be tailored to match or promote the type of actual culture values we desire, the only relevant question is whether homosexual couples do in fact share the values that heterosexual couples share. The author rightfully identifies this as an issue, but fails to go further.

    The author notes that Antle imputes a difference between the two without more, but then closes the post with the same assertion, namely, if only “he were willing to attribute the same values” to homosexual couples as heterosexual ones he would see the light.

    This is truly begging the question (previously) asked. Readers and voters everywhere are still awaiting either side to back that assertion with proof.

  2. On February 14, 2007 at 12:33 pm W. James Antle III Said:

    You are wrong about the basic facts of the case. The biological mother lives in Virginia with the child. It is the other woman who lives in Vermont. Although the outcome of Miller-Jenkins v. Miller-Jenkins may change this, the biological mother retains legal custody because of Vermont court rulings, not due to Virginia’s policies against civil unions. According to the Washington Post Magazine‘s account, the “non-biological mother,” as you put it, drove the biological mother and her child to Virginia herself.

    The Vermont courts may reverse custody, which is the topic of the article. The biological mother’s attorney are invoking Virginia’s nonrecognition of out-of-state civil unions in a completely different jurisdiction.

    I don’t “assume” that civil unions are institutionally less concerned with childbearing than marriage — they are, in fact, marriage in all but name in the state of Vermont. I am pointing out the obvious fact that homosexuals cannot naturally produce children and that a defintion of marriage that applies to them reduces the importance of childbearing in favor of state-sanctioned couplehood. Calling it marriage wouldn’t change that reality; it would probably just accentuate it.

  3. On February 15, 2007 at 10:30 am W. James Antle III Said:

    I’m afraid the post is still incorrect. The child lives with the biological mother in Virginia, not with the mother’s former partner in Vermont.

    Thank you for your comments.

  4. On February 15, 2007 at 10:42 am Mark Pike Said:

    Thanks again for your comments. I have passed them along to the original author and updated the post to more accurately reflect the facts in the case.