Yesterday, I wrote about the NOM-heralded article by Dr. Patrick Lee and my email response. I commend Dr. Lee for his civil reply (I am often too sarcastic). Nevertheless, civil does not mean sensible. I choose not to have an email colloquy with Dr. Lee as we both have fixed positions.

What Dr. Lee seems to suggest is that the state has an interest in traditional marriages because they are procreative. Aside from the fact that not all marriages have children, some gay couples adopt children. The implication is that the state does not have an interest in “gay marriages” because their children were conceived by others.

That is illogical per se. In addition, most of the children of gay couples were in the foster care system prior to their adoption. Removing those children from “the system” changes who is responsible for their care, relieving the state of in loco parentis obligations. I would argue that kids deserve married parents regardless of whether their parents are heterosexual or homosexual.

That begs the question of what interest the state has in recognizing the unions of gay couples who choose not to adopt children. Then one has to question what interest the state has in heterosexual couples who choose not to conceive. The answer is that the state has an interest in recognizing loving couples who vow to care for each other “in sickness and in health.”

As for the similarity of a gay couple to “elderly sisters,”  Dr. Lee makes the distinction of not being “sexually active.”  Dr. Lee fails to recognize, or to accept, that fraternal love is very different from the love that one has for a spouse     even if that spouse is of the same sex.

Then Dr. Lee seems to be arguing that this is not a civil rights issue by claiming that, as a group, our distinctiveness has been “gerrymandered” which means that we have been unfairly apportioned to our advantage. This seems to be an arcane proposition. Perhaps Dr. Lee is addressing the legal test of a “suspect class” which includes the class having an “immutable characteristic.” If that is what he is arguing     and I am for from sure     then he is collaterally arguing “gay by choice.”

At the end of the day, when I strip away the esoterica, Dr. Lee’s sole argument seems to be that only heterosexual couples should be eligible for marriage because they have the ability to conceive children. It is unpersuasive. It did not work with Judge Walker and I doubt that it will be compelling for the Ninth Circuit. As a group, those who oppose marriage equality have a religious objection in search of a secular substitution.

Here is the email. You can judge for yourself:

From: “Dr. Patrick Lee” <>

To: David Hart

Subject: Re: Incoherence?

Date: Mon, 30 Jan 2012 22:35:47 -0500

X-Mailer: Novell GroupWise Internet Agent 8.0.2

Dear David,

    Your first paragraph is a mere ad hominem.  Regarding the argument in the other part:  I don’t deny similarities–what I argue is that it is precisely what is distinctive of marriages as traditionally defined–procreative-type unions–that are the features which ground the state’s interest in promoting them.  BTW all of the similarities you mention are also true of elderly (not sexually active) elderly sisters.  My argument is that what is distinctive of the couples that fall within proposed re-definition of marriage is not properly of public interest; and, conversely, the proposed justifications of public interest on the part of those who seek a re-definition do not pick out features distinctive of the group they have gerrymandered together. 

   Thank you for your thoughts, though–I appreciate your sending them along.

Pat Lee

Patrick Lee

John N. and Jamie D. McAleer Professor of Bioethics

Director, Institute of Bioethics

Franciscan University of Steubenville

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.