Oscar Wilde famously quipped that the only thing worse than being talked about is not being talked about. Paradoxically, much of the testimony in his 1895 trial for “gross indecency”—which was reported in papers throughout the world—concerned his relationship with Lord Alfred Douglas, the very person who coined the phrase “the love that dare not speak its name.”
A little more than a century later, that love is on everybody’s lips.
In the United States we’re waiting to see how the Supreme Court decides the marriage cases it’s reviewing, and Wilde’s home country just became the first in the world to extend marriage equality to same-sex couples by popular vote. Freakishly smart and always happy to grab the spotlight, Wilde would likely have been one of the many Irish expats who traveled home to vote “yes” on the marriage referendum and probably would have taken delight in eviscerating the arguments put forth by nay-sayers, like Michael Brendan Dougherty, who claim that same-sex marriage is “unnatural.” Wilde would be right. It’s clear that when defenders of what they call “traditional marriage” have to justify their position, none of their arguments stand up to scrutiny.
Marriage opponents’ first error is historic. Dougherty imagines a past where genetic parenthood determined legal and social parenthood. But that past does not exist. To the contrary, both law and society have long recognized that love comes in different packages. Some are more common—heterosexuality, marriage, parents raising kids conceived with the fun, free stuff lying around the house—but that hardly makes them “natural.”
It’s misleading to talk about “the” family in one-size-fits-all terms. My new book, Love’s Promises, dubs the common forms of family “Plan A,” because the tracks are greased in that direction. But when law, luck, or biology get in the way of Plan A, lots of people switch paths, heading down roads less traveled, like cohabitation, adoption, and reproductive technologies. I call these options “Plan B,” hoping to introduce morally neutral language to the conversation. My goal is to counter moralists like Dougherty who see “uncommon” as synonymous with “unnatural” and “unworthy.”
This natural-law thinking also errs by treating what Dougherty calls the “contractual family” as the opposite of “natural” families. In this view, contracts are cold and alienating, depriving children of their rightful parents. Both personal and professional experience has taught me the error of this approach.
I found out how natural it can be to speak of contract and family in the same breath back in 2002, when I was 38 years old and single, counting down the months of my waning fertility. I’d left my partner of 12 years because I wanted a baby and she didn’t. I could have gone to a sperm bank, but coming from a big family, I wanted company. So I called my old friend Victor to pop the question, little guessing how often gay men get asked for their sperm.
A year and a half, many doctors, and thousands of dollars later, he was my baby daddy and my best friend, holding my hand all through a C-section that brought a bright-eyed baby boy into our lives. Both law professors, we’d signed a four-page co-parenting agreement that set out financial terms for things like college and daycare and emotional things like supporting each other’s romantic relationships.
A few years later, that clause got tested when I met a sharp, stylish lawyer named Karen, who gradually took on the pleasures and pressures of being a parent. We formally folded her in as a third parent when she and I married in 2009. The mechanism was a contract. Signing it touched my heart every bit as much as Victor picking out father-and-son seersucker suits and purple-checked Vans for the wedding. A few years later, Karen and I contracted with a restaurant to host a party for Victor’s wedding to the tall Texan who’d won his heart.
Those written contracts—and more informal agreements that I call “deals,” like you cook and I clean up—make my family an “us.” Without them, we’d be stuck with the off-the-rack rules that don’t fit our lives. Contrary to a natural-law view of family, these agreements are positive. It’s good for both kids and adults for people to think through questions like who pays for daycare and college and promise to go to family therapy if they’re struggling to get along.
The third error in labeling just one kind of family as “natural” is seeing contractual families as dystopian. Consider two examples that Dougherty uses: alternative insemination and adoption. This is no “new dispensation,” as Dougherty claims. To the contrary, doctors in the United States have quietly used donated sperm from medical students to inseminate the wives of infertile men since the 1940s. Family law has long presumed that the husband is the legal father of those children, showing that there is nothing particularly novel in separating legal and genetic parenthood. On the adoption front, laws that allow a birth mother to leave an infant at a hospital or fire station with no questions asked are known as Baby Moses laws, after the biblical story of Moses getting drawn out of the weeds and raised by the pharaoh’s daughter.
Sure, courts sometimes say that law doesn’t recognize parenthood by contract—for example, it’s a crime to sell a baby, and divorcing spouses can’t contract away child-support obligations. Yet since the 1850s, birth mothers have made legally binding agreements—contracts—to relinquish their children to agencies or adoptive parents, just as adoptive parents have made formal, binding agreements to raise those children. Today, those adoptions often involve post-adoption visits between children and their birth families—the very contact with genetic kin that Dougherty champions, all made possible by a contract.
In other words, people have cobbled together Plan B families for as long as families have existed. Neither law nor society has ever required that all children be raised by their genetic parents. On the marriage front, family law recognized informal marriages, also known as common law marriages, when a couple simply moved in together and held themselves out as married. A whopping 62 percent of the Irish voters recognized that families take different shapes.
If Oscar Wilde were a beer drinker, he’d be raising a glass of Guinness with the rest of us to celebrate this triumph of reason over blarney.
