De-Moralizing Gay Rights by Cyril Ghosh

Author:Cyril Ghosh
Language: eng
Format: epub, pdf
ISBN: 9783319788401
Publisher: Springer International Publishing

The unsustainability of the claims made here becomes apparent the instant one attempts to evaluate or falsify them. Two controversial suggestions, in particular, stand out. The first is the misguided proposition that if your parents are not married, it would be difficult for you to “understand the integrity and closeness of [your] family,” even though unmarried gays and lesbians do, in fact, have the ability to create “loving, supportive families.” One can, of course, assert all sorts of things about abstractions like integrity and closeness of family ties as articles of faith, or arrive at these conclusions on the basis of one’s personal history or experiences, or even profess them as a “conception of the good,” but these propositions do not admit of any hypothesis-testing, operationalization of variables, evidence-based reasoning, argumentation, or even, surprisingly, logic.

These statements also render as inferior, and less socially respectable, the life choices of those parents who voluntarily elected to never marry, those parents who live apart or who ended their marriages in divorce, and indeed the lives of those children who (invariably involuntarily) grew up in households where their parents were not married and/or living together.

The Court implies that if your parents are divorced or elected to never get married, then they have effectively deprived you of “permanency and stability.” But permanency and stability in what domains? The citation that follows the phrase is to pages 22–27 of an amicus brief (Smith et al. 2015) which, in turn, explicitly states the following: “The permanency, consistency, and stability inherent in the parent-child relationship has been recognized by the states as securing children’s best interests in the adoption, custody, and visitation contexts” (Smith et al. 2015, 22, emphasis mine). 16 However, unlike the amicus brief, nothing in Obergefell tells us what, precisely, Justice Kennedy has in mind when he is referring to children’s “best interests.” Is he talking about children’s best interests in these specific contexts—of adoption, custody, or visitation? Or is he talking about children’s “best interests” per se? Few would dispute the former. But the latter would be a more controversial suggestion.

To be sure, some social scientific studies do suggest that children living in “two-biological-parent cohabiting” families, in certain situations, experience worse “outcomes” when measured for “well-being” than those living with “two biological married parents” (Brown 2004, 351, emphasis mine). These findings, however, say nothing about gay couples. In addition, couples choose to marry—or not, or to separate, or to sometimes get back together—for a range of competing and often interrelated reasons, and children’s interests (best or otherwise) constitute only one of them. Therefore, to position the “best interests” of children at the heart of the opinion is to elide the complex set of reasons that animate couples’ desire to not be married and/or to not cohabit, and to didactically codify the Court’s disapproval of those who do not look after the unspecified “best interests” of children. Thus, by stipulating a nexus between reproduction/child-rearing and wedlock the Court upholds the dominant culture’s understanding of family formation and sets it up as a norm to which all ought to aspire.

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