1 ¶ALLIANCE DEFENSE FUND

BENJAMIN W. BULL, AZ SBN 009940

2
GARY MCCALEB, AZ SBN 018848
3 GLEN LAVY, AZ SBN 022922
15333 North Pima Road, Suite 165
4 Scottsdale, AZ 85260
Telephone: (480) 444-0020
5
Facsimile: (480) 444-0025
6
ALLIANCE DEFENSE FUND
7 ROBERT H. TYLER, CA SBN 179572
8 43460 Ridge Park Drive, Suite 220
Temecula, CA 92590
9 Telephone: (909) 461-7860
Facsimile: (909) 461-9056
10
11 LAW OFFICES OF TERRY L. THOMPSON
TERRY L. THOMPSON, CA SBN 199870
12 P.O. Box 1346
Alamo, CA 94507
13 Telephone: (925) 855-1507
14 Facsimile: (925) 820-6034

15 1Attorneys for Plaintiffs/Petitioners.

16
SUPERIOR COURT OF THE STATE OF CALIFORNIA
17 CITY AND COUNTY OF SAN FRANCISCO
18
Coordination Proceeding JUDICIAL COUNCIL COORDINATION
19 Special Title (Rule 1550(b)) PROCEEDING NO. 4365
20 MARRIAGE CASES
Case No. 428794
21 PROPOSITION 22 LEGAL DEFENSE AND (Consolidated with 503943)
EDUCATION FUND, a California nonprofit
22 public benefit corporation, et al. DECLARATION OF KATHERINE
23 YOUNG IN SUPPORT OF
Petitioners/Plaintiffs, PROPOSITION 22’s MOTION FOR
24 v. SUMARY JUDGMENT/ SUMMARY
ADJUDICATION
25
CITY AND COUNTY OF SAN Action Filed: February 13, 2004
26 FRANCISCO, et al., Hearing Date: December 22, 2004
Hearing Time: 9:30
27 Respondents/Defendants. Dept.: 304
Judge: Richard A. Kramer
28
I, Katherine Young, declare as follows:

1
 1
2
1. I am over the age of majority. I make this declaration based upon my
3
personal knowledge, and I am competent to testify to the contents herein.
4
5
6 2. I make this declaration in support of Proposition 22 Legal Defense and

7 Education Fund’s action for Declaratory Judgment that the California

8
Marriage Laws, defining marriage between a man and a woman, are
9
constitutional.
10
11
12 Introduction
13
14
3. The purpose of this declaration is to provide my evidence, as an expert in
15
comparative religion, on what universally constitutes marriage and why.
16
17 From my study of world religions (such as Judaism, Confucianism,

18 Hinduism, Islam, and Christianity) and the worldviews of small-scale

19
societies, I conclude that marriage is an institution with five functions: (1)
20
complementing nature with culture to create a culturally approved
21
opposite-sex relationship intended to encourage the birth (and rearing) of
22
23 children in the optimal environment, which is necessary for the

24 preservation and well-being of society; (2) providing children with a

25
parent of each sex whenever possible; (3) providing them with their
26
biological parents whenever possible; (4) bringing men and women
27
28 together for both practical and symbolic purposes; and (5) providing men

2
 1 with a stake in the family and society. As such, marriage is a universal
2
norm.
3
4
4. From my comparative study of the worldviews of major cultures and
5
6 religions and the worldviews of small-scale societies, I have found that

7 marriage has had universal features, nearly universal features, and variable
8
features.
9
10
11 5. Its universal features include the fact that marriage (1) encourages

12 procreation under specific conditions; (2) recognizes the interdependence

13 of men and women; (3) defines eligible partners; (4) is supported by
14
authority and incentives; (5) has a public dimension; and (6) provides
15
mutual support not only between men and women but also between them
16
17 and children.

18
19
6. Its nearly universal features are (1) an emphasis on durable relationships
20
between biological parents;1 (2) mutual affection and companionship; (3)
21
family (or political) alliances; and (4) an intergenerational cycle
22
23 (reciprocity between young and old). These universal and nearly universal

24 features assume also the distinctive contributions of both sexes, transmit

25
1
The reason that “durable” is in the nearly universal category is because this feature was not as
26 important in some small-scale societies in which the kin group as a whole took responsibility for
the sharing of food, protection of its members, and so forth. Durability became extremely
27
important, however, with state formation and families as the basic social unit. This is the pattern
28 that underlies the major world religions and their civilizations. As such, the importance of
durability has been found through Western civilization and informs American culture today.

3
 1 knowledge from one generation to another. They create not only “vertical”
2
links between the generations, moreover, but also “horizontal” ones
3
between allied families or communities.
4
5
6 7. As for the many variable features, these include monogamy or polygamy,

7 (and, within the latter, polygyny or polyandry), endogamy (marrying with

8
a group) or exogamy (marrying outside it);2 marrying up in status or
9
2
Some people argue that preventing same-sex marriage is the same as preventing interracial
10 marriage. Now that we allow the latter, why not the former? But their argument is based on a
reductive analogy between racism (hatred of other races) and heterosexism (hatred of gay
11 people). Almost all people today would agree that the state should have no right to prevent
interracial marriage, but some now argue for the same reason that it should have no right to
12
prevent same-sex marriage. Both racism and heterosexism are forms of prejudice. Both are due to
13 a combination of ignorance and malice. And both are evil. But the analogy is seriously flawed.
It assumes that all those who oppose same-sex marriage, like all those who oppose
14 interracial marriage, are bigots. Some are, but others are not. Marriage between people of
different races was indeed banned in the American South because of racism. But that was one
15 example of a larger phenomenon. We refer to endogamy, marriage only with those from inside the
community. And endogamy is not always caused by racism. Sometimes, for instance, it is caused
16 by religion - that is, by the urge to perpetuate a religious culture. These societies ban
interreligious marriage but usually accept marriage to converts, regardless of their racial or ethnic
17
origins.
18 In any case, endogamy is a cultural variable. Many societies practice exogamy, after all,
marrying only those from outside their communities. Endogamy is not a universal feature of
19 marriage and should not, therefore, be required by law in a heterogeneous society. But the norm
of heterosexuality really is a universal feature of marriage, both anthropologically and
20 historically. And, as say, for not one but five good reasons, which we have mentioned above in or
working definition of marriage. The prejudice of some bigots notwithstanding, in short, there can
21 be a morally legitimate reason for not redefining marriage to include gay couples. It is
worthwhile noting here that not even all black people - those once believed by racists to threaten
22
white purity through intermarriage - see the legitimacy of that analogy. Consider Shelby Steele,
23 who debunked it in articles for the Wall Street Journal (Shelby Steele, "Selma to San Francisco?
Same-sex Marriage Is Not a Civil Rights Issue," [dated] 20 March 2004, Opinion Journal,
24 [visited] 19 August 2004, http://www.opinionjournal.com/forms/printThis.html?id=110004846;
this article appeared in the Wall Street Journal, 20 March 2004) and the New Republic (Shelby
25 Steele, "Married with Children," [dated] 14 April 2004, New Republic Online, [visited] 19
August 2004, https://ssl.tnr.com/p/docsub.mhtml?i=express&s=steele041304).
26 "Racial difference," says Steele, "is an innocuous human difference that in no way redefines the
heterosexual nature of marriage or effects its procreative function. Interracial marriage has no
27
effect on the institution of marriage" (Steele, "Married," 1). Steele defends this with many of the
28 arguments that we have made in this article. "But when marriage is redefined to include
homosexuality, it ends the heterosexual definition of marriage and moves marriage farther away
from its grounding in procreation. It effectively makes marriage an institution more purely

4
 1 marrying down; arranged marriage or chosen; dowry (from the bride's
2
family) or bride price (goods given or services performed by the groom);
3
equality (for instance, the legal ability of women to make contracts) or
4
hierarchy (for instance, the lack of legal ability of women to make
5
6 contracts); many children or few as the ideal; extended family or nuclear;

7 residence within the bride's family, with the groom's, or neither; divorce
8
allowed or prohibited; and so on.
9
10
11 8. Alternatives to marriage are celebrated in some societies (as in the case of

12 celibate monks, for instance, or shamans) and tolerated in others (such as

13 single people) but only when this does not threaten the reproductive
14
system on which social renewal is based.
15
16
17 9. These universal and nearly universal features create the matrix for the five

18 universal features that define the institution of marriage and provide the
19
best context for children.
20
21
devoted to romantic love and adult fulfillment than to the heavier and more selfless
22
responsibilities surrounding procreation. Of course, adult love and the responsibilities
23 surrounding procreation are not mutually exclusive, but the gravity of marriage as an institution
comes from its demand that love be negotiated through these larger responsibilities. To be sure,
24 there are childless heterosexual couples and homosexual couples with children. But to define an
institution as important to society as marriage by exceptions to the norms of both sexual
25 orientations - rather than by the norms themselves - makes little sense. It could be argued that
marriage is quite literally an outgrowth of heterosexuality itself, an institution that follows from
26 nature's requirement that men and women sexually merge to perpetuate the human species"
(Steele, "Selma," 1). Marriage, he adds, evolved "to protect children and procreation from the
27
vicissitudes of adult love," including the "explosive natural force of male-female sex" (Steele,
28 "Married," 2). Family life suffered among black Americans during slavery, and so did marriage
during another century of segregation; even now, with massive support from the government, the
black family is in bad shape.

5
 1 10. When historians describe changes in marriage systems (for instance, how
2
Western marriage has changed from the time of ancient Israel, Greece and
3
Rome to modern times) they are describing changes in the variable
4
features of marriage. The universal, nearly universal, and variable features
5
6 can be detected only by a comparative methodology. In other words,

7 focusing on the definition of marriage in a particular society (or even a

8
particular historical period in its history) makes it difficult to know which
9
aspects are distinctive (localized) and which belong to a universal or
10
11 nearly universal pattern. Only when this particular example is compared

12 with others will any repetitive characteristics stand out.3 When these are
13 examined in connection with the original example, the latter will be seen
14
to have both universal and variable features. Put otherwise, when only one
15
historical example of marriage is considered, the variables can mask the
16
17 universals. This creates conflict between scholars whose perspective is

18 particular (yet make claims about marriage in general) and those whose
19
perspective is universal (and base their claims on empirical evidence).
20
21
My Qualifications
22
23
24
25
3
It could be argued that focusing on the universal or nearly universal features would lead to the
26 methodological problem of essentialism. But that is a false problem for three reasons. First, there
really is an empirical basis for these features. Second, using inductive reason to discern patterns is
27
a fundamental characteristic of scholarship. And third, any phenomenon so common as to be
28 universal or nearly universal must be examined extremely carefully, for it likely reveals
something basic in human nature.

6
 1 11. As a full professor in the Faculty of Religious Studies at McGill
2
University, and as James McGill Professor, I have expertise in
3
comparative religion (also known as the history and phenomenology of
4
religions) in general and on Hinduism in particular. The assumption of the
5
6 comparative approach is that one must have in-depth historical and

7 linguistic expertise in one area; because my study of Hinduism is focused

8
on Srivaisnavism and the merger of north Indian and south Indian cultures
9
between the first century BCE and fifteenth century CE, I have studied
10
11 Sanskrit and Tamil. However, the field of comparative religion

12 acknowledges that to know one religion, alone, is to know none. True

13 understanding comes not only from knowing one religion in its historical
14
perspective but also from knowing what makes it similar and different
15
from other religions - and what is true about religion in general. For many
16
17 years, I have taught introductory courses in world religions. Teaching has

18 helped further my knowledge of religions other than Hinduism, and I

19
continually draw on this knowledge when making generalizations.
20
Furthermore, I have read widely in anthropology so that my knowledge of
21
religions extends to small-scale societies and those based on oral
22
23 traditions.

24
25
12. Comparative religion is an empirical and social scientific approach to
26
religion, not a theological or faith-based one. The German title of the field
27
28 is Religionswissenschaft, often translated into English as the “scientific

7
 1 study of religion.” In France, it is known as sciences réligieuses. My initial
2
training in comparative religion, in the late 1960s at the University of
3
Chicago, was under Mircea Eliade. He was most famous (and probably
4
still is) for his comparative approach. Although I learned much from his
5
6 comparative method, I have refined it by drawing on the approach of

7 cultural anthropology. The latter pays more attention than Eliade did to
8
patterns determined by economic and political organization. I find that
9
religious worldviews and symbol systems change according to these
10
11 variables. My interest in comparative religion also developed at the Center

12 for the Study of World Religions at Harvard University where I was a

13 visiting student for a year during my doctoral work.
14
15
13. As interest in women and religion grew in the 1970s, so did interest in
16
17 what were general problems for women in other cultures. It has been my

18 privilege to write the introductions to several books that have chapters

19
written by experts on women in Hinduism (some of them my chapters),
20
Judaism, Christianity, Islam, Confucianism, Taoism, Buddhism, Sikhism,
21
African religions, Native American religions, Shinto, and Zoroastrianism.
22
23 My scholarly task in writing these introductions has been to compare these

24 chapters by other experts and, drawing on my own criteria of expertise, to

25
detect similarities and differences. In doing so, I have helped sort out the
26
conflicting claims being made by feminists and others about gender and
27
28 religion. These introductions are found in the following books, edited by

8
 1 Arvind Sharma: Women and World Religions (1987), Today's Woman in
2
World Religions (1993), Religion and Women (1994), Feminism and
3
World Religions (as joint editor, 1999), Women Saints in World Religions
4
(2000), and Methodologies in Religious Studies: The Interface with
5
6 Women's Studies (2002). Women and World Religions has been used as a

7 textbook for courses in religion throughout Canada and the United States.
8
Feminism and World Religions was selected by Choice as a book of
9
excellence in January 2000. In 2003, Arvind Sharma and I edited yet
10
11 another volume: Her Voice, Her Faith (Westview).

12
13 14. The study of gender and religion could not be complete without a study of
14
men. I have been working with a colleague, Dr. Paul Nathanson, whose
15
expertise complements my own. For the past fifteen years, we have been
16
17 writing a trilogy on gender and men: Spreading Misandry: The Teaching

18 of Contempt for Men in Popular Culture (McGill-Queen's University

19
Press, 2001); Legalizing Misandry: From Public Shame to Systemic
20
Discrimination against Men; (McGill-Queen's University Press,
21
forthcoming 2005); and Transcending Misandry: The Road to Intersexual
22
23 Dialogue (McGill-Queen's University Press, forthcoming 2006). These

24 volumes identify the universal and particular aspects of masculinity, show

25
how gender identity is formed, and assess the ethical implications of
26
current claims about men and women. We document patterns in Canadian
27
28 and American culture, evaluating them from comparative and ethical

9
 1 perspectives. Our goal has been justice for both women and men and
2
elimination of old and new double standards.
3
4
15. My third area of interest, developed over the past fifteen years, has been
5
6 comparative ethics in general and Hindu ethics in particular. I am a

7 member of the McGill Centre for Medicine, Ethics and Law. I have sat for
8
five years on a national advisory body dealing with ethical problems in
9
research.4 And I have published comparative studies on religion, health,
10
11 and ethics; euthanasia; Eastern concepts of death and dying; and Hindu

12 and Buddhist medical ethics.

13
14
16. My interests in religion, gender, and ethics have led me to study
15
reproduction and marriage through not only historical studies but also
16
17 contemporary ones. Working again as a team, Nathanson and I have

18 conducted research specifically on reproduction and families. This project

19
was funded by the Donner Canadian Foundation ($200,000 between 1988
20
and 1992 for “New Reproductive Technologies and the Family,” part of
21
the Family and Law Program at the McGill Centre for Medicine, Ethics,
22
23 and Law). We brought a comparative approach to this topic by showing

24 how three modern worldviews influence the ethics and politics of

25
reproductive technologies: those of libertarians; feminists who advocate
26
27
28
4
National Research Council of Canada, Human Subjects Research Ethics Committee (1992-
1996).

10
 1 reproductive power and autonomy for women; and natural law.5 For this
2
project, in addition, we examined the positions of Canadian religious
3
groups and their contributions to the Royal Commission on New
4
Reproductive Technologies. Because we worked on this project and the
5
6 one on men at the same time, we paid special attention to the ways in

7 which reproductive technologies might affect men both actually and

8
symbolically. These research projects inform my expertise, illustrated in
9
this declaration, on the ways in which men’s identity might be affected by
10
11 major changes to the laws governing marriage.

12
13 17. For almost twenty-five years, I have collaborated with Nathanson on
14
funded research projects about families and marriage - the most recent one
15
being on same-sex marriage.6 Our collaboration is based on the conviction
16
17 that current debates over marriage must be assessed not only in connection

18 with historical and cross-cultural research into the function and meaning
19
of marriage but also in connection with the risks involved in redefining
20
marriage. To help correct biases, our approach involves both academic
21
research and dialogue. One of us is a man, the other a woman. One is a
22
23 Jew, the other a gentile. One is interested primarily in history and

24
5
Paul Nathanson and Katherine K. Young, “On Biology and Destiny,” Ecumenist 27.2 (1989):
25 29-32; Work in Progress: Katherine K. Young and Paul Nathanson, Three Views on Assisted
Reproduction: A Comparative Perspective.
26
6
Katherine K. Young and Paul Nathanson, “The Future of an Experiment” in Divorcing
27 Marriage: Unveiling the Dangers in Canada’s New Social Experiment ed. Daniel Cere and
28 Douglas Farrow (Montreal: published for the Institute for the Study of Marriage, Law and Culture
by McGill-Queen’s University Press, 2004).

11
 1 anthropology, the other in contemporary popular culture. One specializes
2
in Western civilizations, the other in Eastern civilizations. And one is
3
homosexual, the other heterosexual. Together, through dialogue based on
4
our life experiences and complementary areas of expertise, we have a
5
6 unique vantage point. This helps us understand the complexity of gender

7 and to correct for bias.

8
9
18. At McGill's Faculty of Religious Studies, I have taught the honor’s
10
11 colloquium focused on religion, pluralism, and human rights. Again, I

12 have used a comparative focus to see how world religions deal with
13 diversity, tolerance, and minorities. Teaching has helped me to consider
14
the current demand for same-sex marriage in relation to minority status
15
and discrimination.7
16
17
18 19. My comparative studies over the past thirty years have led me to take a
19
new direction. I have worked with a team of scholars from several
20
disciplines (law, health sciences, and environmental studies) to develop
21
ways of integrating expertise to solve major social problems. This
22
23 approach is called “transdisciplinarity.” In my understanding, it takes

24 comparative and interdisciplinary studies a step further by using them for

25
practical purposes. I was invited to present my approach at a colloquium
26 7
For examples, see: David E. Gunn, Chris Barrigar, and Katherine K. Young, eds., Religion and
Law in the Global Village (Atlanta: Scholars Press, 2000); Katherine K. Young, "The Classical
27
Indian View of Tolerance with Special Reference to Tamil Epic Cilappatikaram," in Truth and
28 Tolerance (Montreal: Faculty of Religious Studies, McGill University, 1990): 83-112; Katherine
K. Young and Paul Nathanson, “Living Together: Etiquette for a Multireligious Society,” in
Hikmat, 3.5 (1991).

12
 1 near Paris, sponsored by the EOLSS Foundation and the UNESCO
2
Division of Philosophy and Ethics; the proceedings were published in
3
2000.8 The use of expertise in several areas, which is required for
4
problem-solving and decision-making in court cases such as this one, is an
5
6 example of transdisciplinarity at work.

7
8
Comparative Religion: General Comments
9
10
11 20. Scholars in comparative religion study the worldviews of both small-scale

12 societies (such as those of North American Indians) and large-scale

13 societies (such as those of China and India). In small-scale societies,
14
religion is fully integrated into what we would consider secular aspects of
15
culture; everything is religious - not only beliefs about this or that deity
16
17 but also about food production, kinship political structures, and so on.

18 Religion is fully integrated in traditional large-scale societies, too, but it is

19
more specialized; everything has a religious component, but distinctions
20
are made among (religious) law, (religious) art, (religious) economic
21
structures, (religious) political institutions, and so on. As a result, the study
22
23 of comparative religion includes many topics that those outside the field

24 might not identify immediately as religious. For instance, religions are

25
very concerned with biological matters such as sex, reproduction,
26
8
27
Katherine Young, "Transdisciplinarity: Postmodern Buzz Word or New Methods for New
28 Problems?" in Transdisciplinarity: Recreating Integrating Knowledge, ed. Margaret A. Somerville
and David J. Rapport (Oxford: EOLSS, 2000).

13
 1 contraception, birth, and childrearing. They produce primary sets of
2
“reproductive rules,” which constitute “parental investment handbooks.” 9
3
4
21. Religions (and cultures) are concerned with social matters, too. Three
5
6 major themes come up in the sociology of religion: “Religion is a social

7 phenomenon. Each religious tradition grows out of it, and in turn acts back
8
upon, the social life of the people who participate in it. Religious traditions
9
contain a systematic set of beliefs that are acted upon and sustained by
10
11 rituals and institutions. Each tradition constructs a religious ethos that

12 defines the taboo lines between acceptable and inappropriate behavior,

13 defines identities, legitimates social orders, and provides guidelines for
14
everyday life.”10 Even though secularity is replacing religion in some
15
circles or in some ways, knowledge of religion helps us to detect the
16
17 religious structures underlying secular ones or how political ideologies

18 function as secular religions.

19
20
22. Using the comparative method, scholars in my field examine traditions to
21
find general patterns (apart from anything else). The patterns found are
22
23 9
"Religions are very concerned with matters biological - with sex, with reproduction, with
24 contraception, with birth and childrearing. Indeed, it may be that no other aspect of cultural life is
so influential in determining how people conduct their day-to-day doings as their beliefs, and
25 these are nearly always deeply ingrained in the religions of their cultures ... Religions thus act as
culturally phrased biological messages. They arise from the survival strategies of past group
26 members and continue to advise at the present time. As such, a religion is a primary set of
`reproductive rules,' a kind of `parental investment handbook'" (Vernon Reynolds and Ralph
27
Tanner, The Biology of Religion [London: Longman House 1983] 294).
28 10
Lester Kurtz, Gods in the Global Village: The World's Religions in Sociological Perspective
(Thousand Oaks, Calif.: Sage, 1995) 18.

14
 1 used to make inductive generalizations. These generalizations, in turn,
2
invite explanations. Empirical data comes from the anthropological study
3
of both small-scale and large-scale societies to discern what is universal,
4
nearly universal, and variable.
5
6
7 Marriage as a Norm: The Perspective of Comparative Religion
8
9
23. The definitions of “spouse” and “marriage” in American law have been
10
11 criticized by advocates of same-sex marriage for assuming that marriage

12 must be between a man and a woman; that its main purpose is procreation;
13 and that no explanation is given for this definition. In this declaration, I
14
will use empirical evidence to show that marriage has been a norm
15
essential to public order.
16
17
18 24. A norm is a collective preference. Support is provided by religious or legal
19
authority. Conformity is encouraged by rewards and discouraged by lack
20
of rewards. All societies have found it necessary to establish norms not
21
only for sexual behavior but for most other forms of behavior as well. That
22
23 is because no society can have it all, just as no individual can. Every

24 society must make choices. And choosing one thing - one form of
25
behavior, say - inevitably means not choosing others. Although nature
26
helps identify and establish norms, nature itself does not enforce norms;
27
28

15
 1 instead, culture has had to do so1112 Every society, therefore, has found it
2
necessary - whether formally or informally, directly or indirectly - to
3
reward some forms of behavior and not reward others. Marriage is every
4
society's norm for reproduction – whether society is secular or religious -
5
6 and it has always been associated with the highest authority (ancestors,

7 deities, scripture, law, and so forth), public recognition (rituals, witnesses,

8
registrations), and thus public accountability. It has always been fostered
9
by inducements, moreover, whether social (prestige, say, or political
10
11 alliances), economic (transfer of property), religious (divine rewards, and

12 so on), legal, or a combination of these.

13
14
25. In other words, culture refers by definition to the order established by
15
society in the midst of what would otherwise be chaos. This pattern varies
16
17 from one society to another. But all societies have culture. And thus all

18 have the norms on which order is based. The only question is whether this
19
or that norm is useful and should be protected or preserved.
20
21
26. Not only do all societies create norms, but all individuals live by them as
22
23 well. There is no such thing as a human tabula rasa, someone who could
11
24
12
Humans have developed a greatly enhanced capacity for culture. This has passed from one
25 generation to another. "Humans learn the rules that govern behavior and how to conform to them;
they also attach meaning to their ideas" – and - "Gender expands the definition of `sex' beyond its
26 physical connotation. Its scope spans the social, cultural, and psychological aspects of sex. This
point cannot be made strongly enough: the uniqueness of human sexuality lies in the interaction
27
between biology and the social, cultural, and psychological worlds" (Robin Fox, Kinship and
28 Marriage: An Anthropological Perspective [Cambridge: Cambridge University Press, 1967], 72
and 75).

16
 1 engage in an activity without at least some awareness - no matter how
2
rudimentary, distorted, or subconsciously manipulated by linguistic and
3
other symbols - of its cultural context. Other species rely heavily on
4
instinct. What instinct does for them, by and large, culture does for us.
5
6
7 27. As I will demonstrate below, every society creates some cultural matrix
8
for reproduction and parenting, for bonding men and women together, for
9
giving children the best possible opportunities to grow to maturity and to
10
11 develop identities that give meaning and purpose to their different bodies.

12 Or, to put it another way, every society fosters norms that are
13 advantageous for conception, childbirth, and childcare. Not surprisingly,
14
no society (unless it is in the process of disintegrating) has ever left family
15
life - including the supposedly biological mechanics of reproduction -
16
17 entirely to nature.

18
19
The five features of marriage elaborated
20
21
28. We need culture to complement nature: This lies at the core of being
22
23 human and has major implications for the reproductive cycle. Much of

24 what is accomplished in animals by nature (often known as "biology,"

25
"genetics," or "instinct") must be accomplished in humans by culture,
26
which includes not only elite culture and popular culture but all aspects of
27
28 human existence aside from those that are determined by nature. Although

17
 1 particular cultures are not genetically encoded, the ability and need to
2
create culture is genetically encoded. We are equipped and even driven by
3
nature, paradoxically, to be cultural beings. This has made us more
4
flexible than animals, which rely entirely (or almost entirely in the cases
5
6 of some other primate species) on nature. And this, in turn, has greatly

7 facilitated our adaptation to new circumstances or environments and thus

8
fostered human survival. In short, culture is not a thin veneer that we
9
apply to something more primitive and basic. On the contrary, it is a
10
11 defining and therefore fundamental feature of human existence; if it were

12 somehow removed, the result would not be a functioning organism,

13 whether human or non-human. This is a major point here. The
14
reproductive cycle includes not only bringing children into the world but
15
also rearing them to maturity. This process is not reducible, therefore, to
16
17 copulation. To use anthropological terminology, human existence is based

18 on a collaboration between nature and culture; the latter is not an

19
epiphenomenon. Apart from any other handicap would be its inability to
20
reproduce successfully. Why? Because copulating, governed primarily by
21
nature, is not synonymous with reproduction.13 The latter, governed
22
23 primarily by culture, includes a wide range of complex heterosexual

24 behaviors that are required by family life within a larger society. This
25
13
Anthropologists distinguish between mating and marriage. See Vernon Reynolds, "The
26 Biological Basis of Human Patterns of Mating and Marriage," in Mating and Marriage, ed.
Vernon Reynolds and John Kellett (Oxford: Oxford University Press 1991, 46). For the latest
27
scientific research on the relation between nature and culture in the process that bonds men and
28 women, see Helen Fisher, Why We Love: The Nature and Chemistry of Romantic Love (New
York: Henry Holt, 2004).

18
 1 leads directly to the following more specific needs of every society.
2
Because these are basic needs, they inform the norms, or ideals, of every
3
society.
4
5
6 29. Children need a parent of each sex: Why? Because the sexes are not quite

7 interchangeable. Though much more similar than dissimilar, each is

8
distinctive. No matter how inconvenient it might be politically, the fact is
9
that human beings, like all other animals, are embodied beings. And this
10
11 means that our bodies are (with rare exceptions)14 either male or female.

12 Under discussion here is sex, not gender. The latter is determined by

13 cultural variables, but the former is determined by genetic givens and is
14
therefore not merely a "social construction." Some people prefer to ignore
15
this obvious distinction, but it remains true all the same. It is reasonable to
16
17 conclude that this fundamental fact of life should be taken seriously by all

18 those who would shape public policy.

19
20
30. Feminists have been arguing for decades that no male can teach any
21
female about the experience of being female (and therefore about being
22
23 feminine). We could say the same thing, however, from the other point of

24 view: that no female can teach any male about the experience of being
25
male (and therefore about being masculine). Both claims are sometimes
26
exaggerated, because each sex can teach the other at least some things
27
28
14
The most obvious example would hermaphrodites, who are born with the sexual organs of both
sexes.

19
 1 merely by virtue of being observers or "outsiders." Boys do need to know
2
how women perceive men and what they expect from men, for instance.
3
Similarly, girls do need to know how men perceive women and what they
4
expect from women. It could be argued (and often is) that parents can
5
6 always bring in relatives or friends of the opposite sex to be models and

7 mentors for masculine identity. True, but these people are surrogates; they
8
do not live with the children on a continuing and enduring basis. The need
9
for fathers is particularly acute for boys, moreover. Like girls, they must
10
11 separate from their mothers. Unlike girls, however, they must also switch

12 the focus of their identity from one sex to the other.15

13
14
31. Children need their biological parents: Many adopted children make
15
strenuous efforts to find the identity of their biological parents and thus
16
17 something important about their own identities. We now know that this

18 biological link is deeply rooted. Evolutionists theorize that "when we care

19
for and enhance the life of those carrying our genes, we contribute to our
20
own `inclusive fitness,' i.e., the continuation of our own genes down
21
through the generations."16 Because it is easier to work with nature than
22
15
23 Societies have helped boys switch their identities from women to men in various ways. Many
take boys from the primary care of their mothers at specific ages and initiate them into men's
24 groups (sometimes with their own secret cultures) or into other groups that are closed to women.
See Michael Gurian, The Good Son: Shaping the Moral Development of Our Boys and Young
25 Men (New York: Jeremy P. Tarcher, 1999); David D. Gilmore, Manhood in the Making: Cultural
Concepts of Masculinity (New Haven: Yale University Press, 1990), p. 26ff (using Erik Erikson,
26 Robert Stoller, D.W. Winnicott, Nancy Chodorow, and others); and Roger Horrocks, Masculinity
in Crisis (New York: St. Martin's Press, 1994), 70-77.
27
28 Don S. Browning, Marriage and Modernization: How Globalization Threatens Marriage and
16

What to Do about It (Grand Rapids, Michigan: Eerdmans, 2003), 107.

20
 1 against it, in the sense of having a complementary and not antagonistic
2
cultural component, all societies have given priority to biological parents
3
and encouraged unrelated parents to step in only as needed in unusual
4
cases.
5
6
7 32. But our ancestors knew nothing of DNA testing, so how did they identify
8
these biological fathers? Not all of the men who once believed that they
9
were fathers actually were fathers, true, but they were exceptions. Most
10
11 men had good reasons for believing that they were fathers. Almost all

12 societies allow sexual intercourse according to rules that make biological

13 parenting the most likely outcome.17 First is the universal norm of
14
marriage between men and women. Second is the nearly universal vow of
15
commitment. Women vow fidelity to their husbands (so that the latter can
16
17 be confident that they are the fathers of any children), and men vow

18 fidelity to their wives (so that the latter can be confident of receiving
19
resources and protection). Third is the nearly universal rule that men and
20
women should marry before having children (and therefore after taking
21
those vows). Marriage is a public event, therefore, announcing that
22
23 couples are ready to have children.

24
25
33. According to G. Robina Quale, "marriage systems tend to be most flexible
26
of all in the affluent modern urban industrial-commercial societies ... But
27
28
17
G. Robina Quale, A History of Marriage Systems, Contributions in Family Studies, 13 (New
York: Greenwood, 1988), 25.

21
 1 even there, biological concerns continue to play their age-old role."18 A
2
few societies have preferred social parenting, not biological parenting. The
3
Israeli kibbutz is one obvious example. Even on the kibbutz, though,
4
children know their biological parents and spend some time every day
5
6 with them. By and large, social parenting is encouraged only in connection

7 with orphans, remarriage, and infertility. There are a few other exceptions,
8
such as social fatherhood in some matrilineal societies.
9
10
11 34. Every society needs to bring men and women together for the common

12 good: One obvious aspect of the common good is demographic continuity

13 - or, to put it more bluntly, collective survival. A less obvious but equally
14
important aspect is social stability. A society in which men and women
15
were autonomous communities, after all, would by definition be a
16
17 profoundly fragmented one (and, given the rhetoric of some feminists, a

18 profoundly polarized one as well).19

19
20
21
18
Quale 25.
22
23
19
The most obvious example of sexual polarization would be Andrea Dworkin's Intercourse (New
York: Free Press, 1987). But the idea that men are radically "other" (and inferior at best), whether
24 genetically or culturally (or both), was already common in the 1980s. See Catherine Keller, From
a Broken Web: Separation, Sexism, and Self (Boston: Beacon Press, 1986); Mary Daly, Pure
25 Lust: Elemental Feminist Philosophy (Boston: Beacon Press, 1984); Marilyn French, Beyond
Power: On Women, Men and Morals (New York: Ballantine, 1985); and Robin Morgan, The
26 Demon Lover: On the Sexuality of Terrorism (New York: Norton, 1989). For comments on this
problem, ideological dualism, see Daphne Patai, Heterophobia: Sexual Harassment and the
27
Future of Feminism (Lanham, Md.: Rowman and Littlefield, 1998). This was the main topic of
28 our own book, Spreading Misandry: The Teaching of Contempt for Men in Popular Culture
(Montreal: McGill-Queen's University Press, 2001).

22
 1 35. At the heart of human existence is a natural asymmetry between the sexes.
2
Because women produce a limited number of eggs, they choose their
3
mates with long-term goals in mind; even now, most women invest
4
heavily in gestation, childbirth (often painful and historically dangerous),
5
6 lactation, and the care of infants and young children. Because men

7 produce countless sperm, by contrast, they can easily impregnate many

8
women, sire many children, and keep moving on to other women; they
9
need not, in purely biological terms, invest much in caring for any of these
10
11 women and children. But every society has strongly encouraged men to

12 invest heavily in family life. Why?

13
14
36. The answer is that every society needs men to do so and uses a variety of
15
cultural mechanisms to ensure that they do. First, according to
16
17 evolutionary psychologists, women need the support of men during both

18 pregnancy and the years before their children mature. Second, men are
19
more likely to provide care for children, food and protection, if they know
20
that these children are their own. Husbands can usually assume that their
21
wives are loyal, because cultural rules ensure that no other men have
22
23 access to them.20 Third, men receive not only sexual pleasure but also care

24 from long-term partnerships with women; most men learn21 that this is
25 20
This is an argument made by evolutionists and evolutionary psychologists. For the former, see
David C. Geary and Mark V. Flinn, "Evolution of Human Parental Behavior and the Human
26 Family," Parenting: Science and Practice, 1:1-2 (January-June 2001): 5-61. The authors analyze
the transition from primates to humans. For a summary of the scholarship and additional
27
references, see Browning, 106-111.
28 21
Men learn this partly by experiencing it personally and partly by absorbing cultural traditions.
Society exacts a heavy price on those men who still fail to learn it and act accordingly.

23
 1 ultimately more satisfying than promiscuity. And fourth, the parental
2
experience of caring for their children, what is called "kin altruism,"
3
extends to their mates in a kind of reciprocal altruism.22
4
5
6 37. Men need to have a stake in the family and society: Like women, men are

7 not merely pawns in the larger game of society. All people need to be
8
needed in one way or another. Otherwise, no one could find meaning or
9
purpose in life. Otherwise, in fact, no one could form a healthy identity.
10
11 Nathanson and I have defined that elsewhere23 in terms of at least one

12 distinctive, necessary, and publicly valued contribution to society.

13
14
38. Male biology alone might leave men, like the males of some other species,
15
as loners with little or no investment in the group. But masculine culture,
16
17 no matter how much it might vary from one society to another, ensures

18 that men do indeed feel connected with society. This gives every man a
19
personal stake not only in the welfare of society but also in the future of
20
society. (Any adult who does not have a stake in society is by definition
21
either reclusive or antisocial in the sense of hostility toward society, not
22
23 merely lack of sociability.) For many men, this stake is represented

24 primarily by children - that is, by all future descendants - and therefore

25
made possible by marriage.
26
27 22
Browning 110-111.
28 23
Nathanson and Young, Spreading Misandry, 18-19; 61.

24
 1
2
39. To have a stake in the future of society is by definition to have a stake in
3
future generations - which is to say, in communal survival. And that, in
4
turn, means - for most, though not all men - having children. The second
5
6 part of this statement might require some explanation. Ethologists would

7 focus attention on the genes and their reproduction. From that point of
8
view, the relationships (if any) that men have with their children would be
9
irrelevant.
10
11
12 40. But men are people, not merely carriers of genes. From this point of view,
13 their relationships do matter. And marriage is the institution that
14
establishes and supports those relationships. That is by no means,
15
however, the only way in which men create identity by contributing to
16
17 society. Even though I argue here that opposite-sex couples are more

18 important to society than same-sex ones, because most of them produce

19
children, I do not argue that heterosexual individuals are more important
20
to society than homosexual individuals. It would be both impractical and
21
condescending to list even the better-known gay people who have
22
23 enriched society, but the point here is that gay people who do not have

24 children (and do not marry) are by no means cut off by that very fact from
25
having healthy identities - what is referred to as "dignity" and "self-
26
esteem." And any society that insists on conformity without exception to
27
28

25
 1 one model - in this case, marriage - would be greatly impoverished as a
2
result.
3
4
The Universal Features of Marriage
5
6
7 41. I have already said that marriage is an institution with five functions. In
8
this section, I will show that my general definition of marriage can be
9
supported by the findings of cultural anthropology. In the section on
10
11 historical evidence, I will show that the universal features of my general

12 definition of marriage can be documented in world religions. In other

13 words, I will use comparative religion as a way of discerning the
14
universal. In addition, I will show that still other features are nearly
15
universal. First, however, I offer the definition of marriage from two major
16
17 encyclopedias which underscore some universal features of marriage:

18 “Every culture of the world recognizes some form of the institution of

19
marriage … There are three major categories of belief about the purposes
20
of marriage: Marriage may be viewed as existing primarily for the
21
continuation of the family and society through procreation: it may be
22
23 considered most importantly as an alliance, that is, the means to bring

24 about the integration of society by setting up kinship ties and kingship

25
terminology; and finally, the union of bride and groom may be perceived
26
as a complex system of exchanges between groups and/or individuals.” 24
27
28
24
Edith Turner and Pamela R. Frees, “Marriage,” in Encyclopedia of Religion, ed. Mircea Eliade,
vol. 9 (New York: Macmillan, 1987), 218.

26
 1 The second and third definitions depend on the first: social conditions for
2
procreation. Here is another encyclopedia definition. “Marriage has two
3
main functions: it is the means adopted by human society for regulating
4
the relations between the sexes; and it furnishes the mechanism by means
5
6 of which the relation of a child to the community is determined … The

7 institution of marriage may be regarded as the central feature of all forms

8
of human society … It stands in an especially close relation to the family -
9
using this term for the group consisting of parents and children. This
10
11 social group rests absolutely on the institution of marriage … The

12 institution of marriage also underlies the extended family.”25

13
14
Anthropological evidence
15
16
17 42. In Varieties of Sexual Experience, Suzanne Frayser describes the cross-

18 cultural method used by anthropologists. “Cross-culturalists ambitiously

19
try to generalize, explain, and construct theories about human societies or
20
cultures. They do this in a variety of ways. One is to identify regularities
21
and variations between social and cultural elements in different social
22
23 contexts ... It would be difficult to maintain that human societies are so

24 unique that they have nothing in common. Cross-culturalists want only to

25
sort out which aspects the societies in their samples share and which they
26
do not, in order to try to discover worldwide regularities. The cross-
27
28
25
W.H.R. Rivers, “Marriage,” in Encyclopaedia of Religion and Ethics, ed. James Hastings, vol.8
(New York: Charles Scribner’s Sons, 1915, 423.

27
 1 cultural method can test a hypothesis suggested by a single case and can
2
check the validity of common assumptions derived from the study of a few
3
cases. The results can help anthropologists to rethink their assumptions
4
and the bases for concepts.”26 Frayser bases her analysis on a sample of
5
6 sixty-two societies from Africa, Circum-Mediterranean, Eurasia, Insular

7 Pacific, North America, and South America. They represent eight types of
8
economy and five types of lineage or descent.
9
10
11 43. Frayser’s position is the following: "[T]he definition [of marriage] should

12 be broad enough to facilitate the identification of a `marriage' in each

13 society, but not so broad that it does not sufficiently differentiate marriage
14
from other relationships ... [M]y own definition of marriage derives from a
15
review of the careful attempts to define it made by other social scientists,
16
17 e.g. Gough and Goodenough, as well as from my analysis of ethnographic

18 reports of marriage in a variety of societies. I have found that I can most

19
consistently and usefully identify marriage in cross-cultural contexts by
20
using the following definition. Marriage is a relationship within which a
21
group socially approves and encourages sexual intercourse and the birth of
22
23 children ... When we are talking about marriage, we are considering the

24 dimensions of a relationship, regardless of its consequences. In a marriage,

25
26
27
28 26
Frayser 425-426; emphasis added.

28
 1 people can be reproductive. In purely sexual relationships, they should not
2
be reproductive."27
3
4
Historical Evidence
5
6
7 44. I have tested Frayser's definition of marriage, derived from a cross-cultural
8
study, against my own definition of marriage that arises from a
9
comparative study of the marriage norms of those world religions that
10
11 have survived from earlier civilizations (Judaism, Confucianism,

12 Hinduism, Islam, and Christianity). I find that her definition of marriage

13 corresponds with the definition that I have arrived at in my scholarship.
14
15
45. World religions fall into two basic categories: ethnic and universalistic.
16
17 Although these categories capture key features, it is important to recognize

18 that ethnic religions have also developed many universalistic

19
characteristics and vice versa.28 Bear in mind that all of these religions
20
21
27
Frayser 248. Frayser's sample is a subsample (every third example) from the full Standard
22
Cross-Cultural Sample of 186 societies designed by Murdock and White (1969). The sample
23 represents world areas and it groups contiguous societies with extremely similar cultures into
clusters, which, "in turn were grouped into 186 `distinctive world areas' on the basis of similarity
24 in language and other cultural elements" (428).

25 28
The word "universalism" usually refers to proselytism. Universal religions are said to be those
that spread throughout the world through conversion (and sometimes conquest). Jews, though,
26 have often called that a spurious form of universalism - one that relies on conformity to a single
notion of truth. For Jews, the word signifies something more general: openness to the larger
27
world. That is distinguished from "particularism," which refers to ethnocentrism. Both
28 perspectives have been around for a very long time, and the resulting tension could be described
as a characteristic feature of Judaism both ancient and modern.

29
 1 have been influenced by modernity and are undertaking reforms,
2
especially to improve the position of women.
3
4
46. Ethnic religions include Judaism, Confucianism, and Hinduism. These, at
5
6 least in their early stages, have been associated with specific territories and

7 languages. People are “born into” them. Marriage and the family,
8
including ancestors, are particularly important. Family solidarity and
9
durability are valued very highly. Marriage and procreation are
10
11 encouraged, therefore, and almost always required of the adherents to

12 these religions. The traditional duties of elite women are undertaken at

13 home, which has allowed them no place in public life; their identity is
14
defined primarily in terms of motherhood. But in modern times, as I say,
15
reformers have generated many changes and dramatically improved the
16
17 position of women, while still acknowledging their important reproductive

18 role for society.

19
20
47. Universalistic religions include Islam, Christianity, and Buddhism. Each began
21
with a charismatic leader who wanted to reform the ancestral tradition. These
22
23 religions offer universal access to salvation, which involves transcending the

24 ordinary world altogether. Religious identity is based on primary religious

25
experiences and on belonging to voluntary religious groups (rather than to kinship
26
groups); unlike ethnic religions, in fact, these make voluntary groups as important
27
28 as or even more important than the family. Some people are encouraged to leave

30
 1 home in search of salvation. Denying the claims of family life altogether, they
2
become monastics or saints. Nevertheless, most people orient themselves toward
3
marriage and family life.
4
5
6 Universal features

7
8
48. The five major world religions apart from Buddhism29 - Judaism, Confucianism,
9
Hinduism, Christianity, and Islam - illustrate the universal features of marriage.
10
11 They (1) encourage procreation under specific conditions; (2) recognize the

12 interdependence of men and women; (3) define eligible partners; (4) are
13 supported by authority and incentives; (5) have public dimensions; and (6)
14
provide mutual support not only between men and women but also between them
15
and children.
16
17
18 49. Procreation under specific conditions. Implicit in the importance given to
19
maleness and femaleness, their union being central to creation or to the
20
cosmic order, is the realization that group survival depends on unions of
21
this kind. World religions use authority and incentives to bond biological
22
23 fathers to their wives and children, thus providing the nuclear family with

24 stability. The importance of men is illustrated by the importance attached

25
to perpetuation of the lineage, especially after the advent of states.
26
27 29
Buddhism, another world religion, is not discussed here. Because its scriptures focus mainly on
28 a monastic tradition; little is said about the laity in general or of the family in particular. The
Buddhist family structure has been left largely to the regulations of other local religions:
Hinduism in India, Confucianism in China, and Shinto or Confucianism in Japan.

31
 1
2
50. The interdependence of men and women. Religions have recognized that
3
maleness and femaleness lie at the heart of human existence - and that
4
each has a cosmic dimension (an image of the deity, say, or a fundamental
5
6 aspect of creation).

7
8
51. Eligible partners. Restrictions on who may marry indicate that societies
9
disapprove of marriage within the immediate family and permit marriage
10
11 only between a man and a woman.

12
13 52. Authority and incentives. The highest authority in traditional societies is
14
mediated by scripture or religious law. Of interest here are not the details
15
but the fact that marriage has been considered important enough to be
16
17 supported with the highest authority and with the most attractive

18 incentives possible.
19
20
53. Public dimension. Weddings are public events. This aspect might involve
21
special times (seasons or weeks), witnesses, vows, the exchange of rings
22
23 or other emblems, an exchange of gifts, processions accompanied by

24 music, feasts, and so on. All of these public features distinguish marriage
25
from mere mating and define it as a norm.
26
27
28

32
 1 54. Mutual support not only between men and women but also between them
2
and children. The contributions of both men and women - providing food,
3
shelter, clothing, and so on - are necessary for family life. The duties of
4
adults toward children include moral training and education.
5
6
7 55. For these reasons, it is a universal that the highest authority (law in some
8
societies) encourages marriage.
9
10
11 Dissimilarity of same-sex relationship with universal marriage

12
13 56. Advocates for same-sex marriage emphasize similarities between same-
14
sex and opposite-sex couples and ignore the chief differences highlighted
15
by these universals. They emphasize that marriage is appropriate for them,
16
17 because they love each other and seek a life-long commitment to one

18 another.
19
20
57. But notice that "mutual affection and companionship" are in the nearly
21
universal category, not the universal one. That is partly because some
22
23 small-scale societies do not base their social structures on long-term

24 unions between biological parents. But it is mainly because many large-

25
scale societies have preferred arranged marriages, not marriages based on
26
personal choice (although they encourage companionship, too, as a
27
28 secondary phenomenon that supports marriage). My point here is to

33
 1 establish the historical and cross-cultural record, however, not to argue for
2
arranged marriages. Even though "love and commitment" are reasons that
3
many Americans now give for wanting to marry, they are not necessarily
4
the underlying ones. People might or might not be conscious of the latter,
5
6 because these are so deeply embedded in cultural structures that they are

7 now implicit rather than explicit.

8
9
58. It could be that people in close personal relationships consider themselves
10
11 committed; many might consider themselves married. But this ignores

12 important distinctions between relationships and marriages, distinctions

13 that overlook the cultural interests served by marriage. "Relationship" and
14
"union" cannot mean marriage without the normative five components of
15
marriage as I have defined it.
16
17
18 59. For this reason, same-sex relationships are not the same as same-sex
19
marriages and certainly do not serve the same purposes of marriage.
20
21
Effects of Legalizing Same-sex Marriage
22
23
24 60. No one can predict the future. It is often claimed that nothing would
25
change for heterosexual people if a few homosexual people were allowed
26
to marry. That is by no means as self-evident as it appears at first glance.
27
28 Nor are the implications.

34
 1
2
61. For opposite-sex couples to do their job properly, as parents, they must be
3
able to rely on a culture that openly and unequivocally supports the project
4
of perpetuating society and addressing the special needs of heterosexual
5
6 couples, who will remain the majority of reproductive couples. I am

7 referring to the symbols and ideals that have always been promoted by
8
means of a massive cultural effort, one that now involves public
9
"agencies" as different as schools and movies. If same-sex marriage were
10
11 legalized and therefore defined as different in no significant way from any

12 other form of marriage, after all, then it would inevitably become illegal
13 (let alone "politically incorrect") to say in public that society relies more
14
on heterosexual couples than it does on homosexual couples. And, frankly,
15
it does. This is neither prejudice nor speculation. It is a biological and
16
17 demographic fact (even if a few homosexual couples do have children and

18 even if technology makes it easier for them to do so). At best, redefining

19
marriage would make marriage between men and women nothing more
20
than one “lifestyle choice” among many supposedly equal ones. Any
21
attempt to promote it for the good of society as a whole - that is, at least
22
23 partly, reproducing itself demographically - would be denounced as

24 discrimination against gay people.

25
26
62. This debate is at least partly about applied ethics, which is directly related
27
28 to law. In practice, writes Margaret Somerville, applied-ethics analysis:

35
 1 "flows back and forth between facts, including scientific facts, ethics and
2
law ... This is not accidental: Good ethics depends on good facts, and good
3
law depends on good ethics. Risk is often among the most important of the
4
ethically relevant facts ... Even when we turn just to physical risks, there
5
6 can be uncertainty, because the scientists cannot agree on the magnitude

7 and prevalence of a given risk. This means that we cannot insist on

8
certainty. What we can insist on is honesty, good faith (especially an
9
absence of conflict of interest) and non-negligence in risk assessment ... It
10
11 matters, as well, whether a risk is likely to be reversible should it occur.

12 We have the most serious obligations not to engender irreversible

13 harms."30
14
15
63. This is not an abstract problem of interest only to academics, which
16
17 explains the addition of "applied" to "ethics." According to Somerville,

18 physicians and scientists have "an obligation to inform the public of the
19
risks of their research or those of its potential applications and uses." 31
20
But, I would add, so do lawyers and politicians. Especially when they
21
formally represent the government and advocate historically
22
23 unprecedented experiments. The principle of informed consent applies to

24 research subjects, moreover, so it surely applies to the public as well when

25
used as a collective research subject. This is by no means the first time that
26
30
Margaret Somerville, The Ethical Canary: Science, Society and the Human Spirit (Toronto:
27
Penguin, 2000), 293-294; our emphasis.
28 31
Somerville 292.

36
 1 these considerations should have been taken seriously but were not.
2
Consider a parallel from forty years ago: liberalizing divorce laws to
3
lighten the burden on a few unhappy couples. At the time, who could have
4
known that this would lead to the "divorce culture"32 of our time? No one
5
6 could have known, of course, but many could have taken the risk seriously

7 and urged caution.

8
9
64. In this section, I will discuss the risks for (1) children; (2) boys and men;
10
11 (3) women; (4) the risks for society.

12
13 65. The risks for children: My argument against same-sex marriage and same-
14
sex parenting is not based on the spurious claim that gay people are
15
inadequate as parents but on the obvious fact that every child ideally needs
16
17 at least one parent of each sex. Advocates of sam-sex marriage are

18 interested primarily or even only in the interests of gay adults. Which is

19
why they often try to argue that children would be better off with good
20
homosexual parents than with bad heterosexual ones (although comparing
21
the best of one thing with the worst of another is illegitimate both
22
23 intellectually and morally). In any case, they argue that same-sex marriage

24 and gay parenting would symbolically strengthen the bonds between all
25
parents and children. On closer examination, though, it is clear that this
26
would be unlikely to happen. The social-science evidence is sometimes
27
28
32
Barbara Whitehead, The Divorce Culture: Rethinking Our Commitment to Marriage and
Family (New York: Knopf; Random House, 1997).

37
 1 ambiguous, but we do know by now not only that two parents are
2
generally better for children than one33 but also that families with both
3
mothers and fathers are generally better for children - even in a society
4
that has already minimized its support for marriage - than those with only
5
6 mothers or only fathers34 and that families headed by biological parents are

7 statistically less risky for children than those headed by social parents.35
8 33
See, for instance, Lingxin Hao, "Family Structure, Private Transfers, and the Economic Well-
9 Being of Families with Children," Social Forces, 75 (1996): 269-292; Frank F. Furstenberg and
Andrew Cherlin, Divided Families: What Happens to Children When Parents Part (Cambridge:
10 Harvard University Press, 1991); and Adam Shapiro and James David Lambert, "Longitudinal
Effects of Divorce on the Quality of the Father-Child Relationship and on Fathers' Well-being,"
11 Journal of Marriage and the Family, 61 (May 1999): 397-408.
12 34
See David Blankenhorn, Fatherless America: Confronting Our Most Urgent Social Problem
13 (New York: Basic Books, 1995). Even when other factors (such as race and intelligence are) are
accounted for, it remains true that boys without fathers are approximately twice as likely (and
14 boys who grow up in stepfamilies are approximately three times as likely) as other boys to end up
in jail by their early thirties. See Cynthia Harper and Sara McLanahan, "Father Absence and
15 Youth Incarceration," paper presented at the annual meeting of the American Sociological
Association, San Francisco, August 1998.
16 The same is true of teenagers. See Chris Coughlin and Samuel Vuchinich, "Family
Experience in Preadolescence and the Development of Male Delinquency," Journal of Marriage
17
and the Family, 58.2 (1998): 491ff.; R. J. Sampson and J.H. Laub, "Urban Poverty and the Family
18 Context of Delinquency: A New Look at Structure and Process in a Classic Study," Child
Development, 65 (1994): 523-540; Robert J. Sampson, "Urban Black Violence: The Effect of
19 Male Joblessness and Family Disruption," American Journal of Sociology, 93 (1987): 348-382;
Ross L. Matsueda and Karen Heimer, "Race, Family Structure and Delinquency: A Test of
20 Differential Association and Social Control Theories," American Sociological Review, 52 (1987):
171-181; George Thomas and Michael P. Farrell, "The Effects of Single-Mother Families and
21 Nonresident Fathers on Delinquency and Substance Abuse," Journal of Marriage and the Family,
58.4 (1996): 884ff.
22
23
35
Children not living with both of their married parents - that is, mothers and fathers - are at
greater risk of being physically or emotionally damaged. See S.J. Creighton, "An
24 Epidemiological Study of Abused Children and Their Families in the United Kingdom between
1977 and 1982, Child Abuse and Neglect, 9 (1985): 441-448; M. Daly and M.I. Wilson, "Some
25 Differential Attributes of Lethal Assaults on Small Children by Stepfathers versus Genetic
Fathers," Ethology and Sociobiology, 15 (1994): 207-217; M. Daly and M.I. Wilson, "Violence
26 against Stepchildren," Current Directions in Psychological Science, 3 (1996): 77-81; C.D. Siegel
et al., "Mortality from Intentional and Unintentional Injury among Infants of Young Mothers in
27
Colorado, 1982 to 1992," Archives of Pediatric and Adolescent Medicine, 150.10 (1996): 1077-
28 1083; Martin Daly and Margo Wilson, "Evolutionary Psychology and Marital Conflict: The
Relevance of Stepchildren," in Sex, Power, Conflict: Evolutionary and Feminist Perspectives, ed.
David M. Buss and Neil M. Malamuth (London: Oxford University Press, 1996): 9-28; Martin

38
 1
2
66. The risks for boys and men: Very few people today would deny that every
3
child needs a mother. But many people do deny that every child needs a
4
father as well. The message from both political rhetoric and popular
5
6 culture, at any rate, is often that fathers are practical or sentimental

7 luxuries at best (as assistant mothers) but dangerous liabilities at worst (as
8
potential molesters).36 In this environment, it is no wonder that so many
9
people see nothing wrong with a family that includes no man.
10
11
12 67. This matter is even more complicated than that, however, when you
13 consider the historical and cross-cultural evidence. Masculine identity has
14
always and everywhere been defined primarily in connection with three
15
functions of men: provider, protector, and progenitor.37 But women have
16
17 moved into the public sphere and become providers. Moreover, they have

18 demanded that the state take over from individual men as protectors. That
19
leaves progenitor - fatherhood - as the only possible source of healthy
20
masculine identity.
21
22
23 Daly and Margo Wilson, "Child Abuse and Other Risks of Not Living with Both Parents,"
Ethology and Sociobiology, 6 (1985): 197-210; Leslie Margolin, "Child Abuse by Mothers'
24 Boyfriends: Why the Overrepresentation?" Child Abuse and Neglect, 16 (1992): 541-551; and
Rebekah Levin Coley and P. Lindsay Chase-Lansdale, "Stability and Change in Paternal
25 Involvement among Urban African American Fathers," Journal of Family Psychology, 13.3
(1999): 416-435.
26
36
See Nathanson and Young, Spreading Misandry.
27
28
37
David D. Gilmore, Manhood in the Making: Cultural Concepts of Masculinity (New Haven:
Yale University Press, 1990).

39
 1 68. We need no prophet to see that massive social problems, more widespread
2
than the ones we already have, are likely to emerge whenever and
3
wherever boys or young men are unable to feel deeply involved in either
4
the family or society as a whole – or, to put it another way, in the future of
5
6 society. Consider the soaring rate at which young men, unlike young

7 women, not only drop out of school but also commit suicide. Over the past
8
few decades, we have seen a resurgence of machismo in its most toxic
9
form. To many boys, it seems clear that even a negative identity is better
10
11 than no identity at all. This alone should give us pause in contemplating

12 the future.
13
14
69. The risks for women: The big winners of the reproduction sweepstakes
15
would be women who want little or nothing to do with men. Women,
16
17 whether lesbian or heterosexual, now have greater access to reproduction

18 than men for at least three reasons: their natural ability to gestate, the
19
prevalence of sperm banks, and the widespread belief that they have some
20
"right" to children. For the past several decades, feminists have
21
campaigned for reproductive autonomy and power. For women, of course,
22
23 not for men.

24
25
70. We should not take the involvement of men in family life for granted. Men
26
who lack strong ties with their families are unlikely to invest much toward
27
28 the welfare of the wives and children. Men who lack biological ties with

40
 1 future generations, moreover, are unlikely to invest in the future of society.
2
The corollary, of course, is to live for themselves and for the moment.
3
That is the orientation of hedonism.
4
5
6 71. The risks for society as a whole: What we have here is a demographic

7 time bomb. To avoid detonation, we will have to see children as more than
8
personal possessions that supply us with emotional gratification. We will
9
have to re-create, in other words, a culture that actively promotes
10
11 demographic continuity. The only alternative is to maintain the population

12 through immigration. But that solution entails problems of its own. On

13 purely moral grounds, for instance, it relies on the notion of importing
14
people from poor countries to do what people at home prefer not to do:
15
having children and working at poorly paid jobs. Besides, not all potential
16
17 immigrants would consider moving to a country that makes no distinction

18 between marriages and unions that have no function other than personal
19
and emotional gratification, one that considers them religious bigots for
20
even making that distinction. Although some gay people do indeed have
21
children, most do not. Which would be fine if we could continue to
22
23 promote marriage as the one institution that is fundamentally about

24 children - that is, about the future of society. But redefining marriage in
25
terms of the "love and commitment" between adult individuals would
26
undermine that effort.
27
28

41
 1 Conclusions
2
3
72. From my study of comparative religions and the secular cultures that have
4
derived from them, it is my opinion that marriage is an institution with
5
6 five functions: (1) complementing nature with culture to create a culturally

7 approved opposite-sex relationship intended to encourage the birth (and

8
rearing) of children in the optimal environment, which is necessary for the
9
preservation and well-being of society; (2) providing children with at least
10
11 one parent of each sex whenever possible; (3) providing them with their

12 biological parents whenever possible; (4) bring men and women together
13 for both practical and symbolic purposes; (5) providing men with a stake
14
in the family and society. As such, marriage has been a universal norm.
15
16
17 73. Today, though, many argue that the main reason for marriage is

18 companionship. Some argue that even if procreation under specific

19
conditions were an essential feature of marriage in the past, it is no longer.
20
That is highly disputable. First, many Western communities have already
21
begun to realize that their continued existence is by no means assured.
22
23 And many post-industrial countries worry about low birthrates in

24 connection with economic problems on the horizon. Members of rising

25
generations, for instance, can face enormous financial pressure to care for
26
their parents; their tax dollars pay for the pensions and medical expenses
27
28 of an aging population. Second, marriage has never been defined merely

42
 1 as one context for producing or rearing children, both of which can occur -
2
and often do - without marriage. Marriage has always been defined as an
3
ideal context for producing and rearing children. An ideal context is
4
arguably needed now more than ever. Despite its imperfections, there is no
5
6 environment better than marriage for raising children. That is because

7 marriage, at least in theory, provides them with biological parents of both

8
sexes on an intimate and enduring basis. Special incentives, therefore,
9
have always been used to support and promote marriage. These incentives
10
11 have not been extended to non-marriage relationships because they do not

12 provide an ideal context for producing and rearing children.

13
14
74. If same-sex marriage were legalized, problems would result from conflict
15
over competing norms. The result would be the establishment of either a
16
17 new norm or a hierarchy of norms - both of which would defeat not only

18 the point of norms but also the aims of those who advocate a society
19
without what they consider the “oppression” of norms. Either way, the end
20
result could be anomie.
21
22
23 75. Another effect inherent in legalizing same-sex marriage would be the

24 elimination of marriage by redefining it to include additional categories of

25
partners as well. If marriage can mean anything, after all, it can also mean
26
nothing. So far, no society has done this; even utopian movements, though
27
28

43
 1 advocating repeal, have usually been content to imagine perfect societies
2
in some transcendent realm beyond history.
3
4
76. If same-sex marriage were legalized because of arguments for equality
5
6 based on “diversity,” the cultural norm of opposite-sex marriage would

7 have no basis. The whole idea of a norm, after all, would be precluded.
8
This could cause problems because culture complements nature in the very
9
definition of human beings, which means that marriage is necessary for
10
11 culturally approved forms of procreation and, by extension, of

12 childrearing. Same-sex marriage would not simply expand the norm,

13 making it more inclusive, it would represent a break with the essential
14
features of marriage’s definition. And it would do so at potentially a very
15
high cost.
16
17
18 77. Anyone trying to predict the future runs the risk of sounding alarmist,
19
especially when doing so in the name of caution. But the potential price
20
for acting without knowing the effect of legalized same-sex marriage is
21
much higher than acting with caution. And the last few decades illustrate
22
23 this point. Who would have predicted thirty years ago that an act of

24 compassion for a few people in unhappy marriages, legalizing easy

25
divorce, would create a "divorce culture" for the many? Who would have
26
predicted then that an act of compassion for single mothers, extending the
27
28 benefits of welfare, would create a permanent underclass of fatherless

44
 1 families led by single women? Who would have predicted even ten years
2
ago that acts of compassion for a few childless couples, sponsoring
3
research on in vitro fertilization and other reproductive technologies,
4
would lead to debates over the ethics of human cloning? In all of these
5
6 cases and many more, the original solutions to problems turned into the

7 causes of other problems. There is reason for deliberate caution.

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45
 1 I declare under the penalty of perjury under the laws of the State of California that
2
the foregoing is true and correct.
3
4
Executed this ____ day of November, 2004 at
5
6 __________________________, Canada.

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9
By ___________________________
10
11 Katherine Young

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46