O N THE NATURE OF MARRIAGE:

SOMERVILLE ON SAME-SEX MARRIAGE

Same-sex couples in Canada were first granted the right to marry in

2003,1 after acrimonious discussions in the Canadian Parliament and tribunals
on the concept of marriage. In my capacity as philosopher of language and
natural-language semanticist, I served as expert witness for the petitioners
in the same-sex marriage cases Egale v. Canada (in British Columbia)
and Halpern v. Canada (in Ontario), critically reviewing two general lines
of argumentation opposing same-sex marriage that were presented to
Canadian Courts: an argumentfromnature, and an argumentfrommeaning.2
On the argument from meaning, it is not that gays and lesbians are
barred from marriage on the basis of substantive personal characteristics,
the way women, say, used to be barred from Law School because they
were thought unequal to the task. Rather, the grounds of exclusion are
alleged to be formal: gays and lesbians are "simply" ineligible semanti-
cally. They fall outside the definitional boundaries of the institution, as
marriage "just is" a union between a man and a woman.3 Just as sisters
cannot be brothers, so the argument goes, 'marriage' is a word that cannot
apply to same-sex unions, no matter how marriage-like these may be. This
was the argument elaborated for the Courts by Rob Stainton. It is a de-
pressingly popular argument, depressing because it displays a profound
misunderstanding of the workings of language. The argument is exactly
analogous to the following, and equally as misguided: "The current meaning
of 'blueberry' is that it refers to these things which are blue berries (just
look in the dictionary). Here is a red berry. It's not blue, so it's necessari-
ly not a blueberry. It is a matter of meaning that in no possible world can
a blueberry be red." "But look," we return, "here is a berry, albeit red, which
grows on the same bush as your blueberry. This shows that your definition
of 'blueberry' is mistaken, and your dictionary should be revised, since
some blueberries are red." "But no," comes the reply, "we could never do

"On the Nature of Marriage: Somerville on Same-Sex Marriage" by Adele Mercier,

The Monist, vol. 91, nos. 3 & 4, pp. 407-421. Copyright © 2008, THE MONIST, Peru, Illinois 61354.
408 ADELE MERCIER

that: to change the definition of a blueberry to accommodate red ones

would be tantamount to claiming that blue is red." Here is Stainton:
To change the meaning (or nature) of 'marriage' such that we can
sensibly use the term to also refer to same-sex unions would be a change
equivalent to changing the meaning of the term 'bachelor' to also include
married men. (Stainton, §11)
In my opinion, defining 'marriage' as being possible between two men,
or between two women, would be like redefining 'sisters' to include pairs of
boys. (Stainton, §61)
As a linguistic argument, this does not even get off the ground. If two
brothers expressed a wish to be declared each other's sister, we would
question their mastery of English; but it takes bad faith of colossal pro-
portions to purport not to understand what two gays want when they wish
to be married.
Considerations of space preclude further pursuit of the argument
from meaning here. I refer the interested reader to a complete discussion
available in my "Meaning and Necessity: Can Semantics Stop Same-Sex
Marriage.'"' I mention the argument from meaning to emphasize a prima
facie contrast between this kind of pro forma argument and arguments
based instead on substantive claims. (As I show in the above cited article,
any pro forma argument yielding substantive conclusions ultimately relies
on substantive claims; so the apparent difference between argument types
at best belies a failure of transparency about underlying premises, at worst
fallacious reasoning.)
The argument from nature, on the other hand, explicitly maintains
that gays and lesbians are excluded from the institution of marriage on
substantive grounds, namely because of their sexual orientation. It was
ubiquitous in the representations made by those speaking on behalf of
religious authorities, most of whom were explicit that homosexuality is a
sin. I present here the version elaborated by Margaret Somerville, partly
because the subtleties of the argument are elaborated in detail in her 2006
Massey Lectures,5 and partly because, unlike most of her coreligionists,
she purports to argue on the basis of respect for homosexuals.6 "To reject
same-sex marriage in order to affirm, in the public square, moral or other
objections to homosexual people is a failure of respect and is discrimina-
ft'on."(Somerville, EI, p. 103) Unfortunately, Somerville's respect only
goes so far. Somerville believes that homosexuals are precluded from
marrying "because marriage is sacred."1 She does not seem to appreciate
 ON THE NATURE OF MARRIAGE 409

the implications of invoking a reason of that form: to say that you cannot
P because P is x (for example, difficult or late or deep or sacred) implies
that P is too x {too difficult, too late, too deep) for you. Ultimately, for
Somerville, marriage is too sacred for gays and lesbians.
What is striking in both kinds of arguments is a suspiciously
contorted reasoning: they use convoluted machinery to make what are ul-
timately circular arguments, and they expend great energy in defending
what are ultimately inert premises. Such contorsions are suggestive of
hidden (or at least unacknowledged) motives, the nature of which I will
leave for the reader to judge. The short of it is that they are bad arguments,
and the fact that they were the best that could be found speaks to the
strength of the case for same-sex marriage. If same-sex marriage were un-
reasonable, it wouldn't take such unreasonable arguments to prove it.

The argument from nature

Somerville believes that nature is sacred, and that we owe it respect.
Her reasoning in ethics is grounded upon "a basic presumption in favour
of the natural." It is as hard to disagree with a basic presumption in favour
of the natural as it is to understand what it means, most human affairs
being a departure from nature. Thankfully, Somerville is "not opposed to
altering the natural"—some of us rejoice over the small-pox vaccine. She
claims however that "a basic presumption in favour of the natural avoids
the problem of needing to distinguish between good and bad in the
natural" (Somerville, EI, p. 109), thereby showing both that she has heard
of the naturalist fallacy yet has failed to understand that it is a fallacy. Her
confusion is revealed by the quote in full: "A basic presumption in favour
of the natural avoids the problem of needing to distinguish between good
and bad in the natural, except in individual concrete cases, while main-
taining general respect for the natural." So in any concrete case, we will
have to distinguish whether nature in that case is good and should be left
alone, or is bad and should be tampered with, but that's fine as long as we
respect nature "in general." In short, nature is to be respected, except
where it isn't. Both in structure and usefulness, this argument is reminis-
cent of the view that the Bible is the literal command of God, except when
it exhorts to kill, rape, enslave, and maim. And just as people cherry-pick
the Bible for the good parts while ignoring the bad parts - thereby proving
Socrates's point that goodness transcends godliness—so does Somerville
cherry-pick nature, allowing that "where intervening to change the natural
410 ADELE MERCIER

can be shown to be justified, it will be ethically acceptable"—which

nicely shows that ethical justification is, after all, independent of nature.
That the appeal to nature is inert in Somerville's argument is revealed
by her own examples. On page 109 of The Ethical Imagination, she
claims that "deleting genes for "bad" human characteristics would never
be justified"—a claim for which she provides no argument (other than her
respect for nature). Yet on page 138 of the same, she claims—again
without argument (and in spite of her respect for nature)—that in the case
of "a serious genetic disease that only affects boys, sex selection by
sperm-separation technology would be ethically acceptable."
An argument by nature, equally inert, undelies Somerville's opposi-
tion to same-sex marriage:
At the heart of the disagreement between people who support same-sex
marriage and those who oppose it is whether the fact that opposite-sex
couples represent a naturally, inherently procreative relationship, and same-
sex couples do not, constitutes a difference that justifies separate
institutions—marriage [for opposite-sex couples] and civil unions [for same-
sex couples]—to publicly recognize committed, adult pair-bonding.
(Somerville, EI, p. 102)
However much Somerville may purport to be laying the groundwork for
a "shared ethics based on universals that are common to all people
whether or not they are religious and no matter what religion they
espouse" (Somerville, EI, p.41), her conception of marriage is lifted
straight out of Catholic doctrine:
Acknowledging same-sex unions turns civil marriage into an institution
which does not affirm the intrinsic significance of any of the three essential
elements of marriage (the male-female relationship, procreative potential,
and parenting of biological offspring). Same-sex inclusion forces a basic re-
configuration of the nature of civil marriage. In a sense, it de-legitimizes the
civil institution as an institution of 'marriage'. (From Daniel Cere, Director
of the Newman Institute of Catholic Studies, McGill University)8
Let us dwell on "the fact that opposite-sex couples represent a naturally,
inherently procreative relationship, and same-sex couples do not," for the
confusions in this passage are many. What are inherently procreative re-
lationships? Is marriage ever an example of such?
A clear example of an inherent fact is the fact about me that I am the
product of my gametes. That my gametes are inherent to me is evidenced
 ON THE NATURE OF MARRIAGE 411

by the fact that if you change the actual sperm and the actual ovum that
went into conceiving me, it is clearly no longer me who exists, but somebody
else. My gametes are an essential condition of my existence. As a matter
of metaphysical necessity, my gametes are inherent to my being.
If my gametes are inherent to my existence, then if we mean by 'sex'
something which is defined in terms of gametes, then since sex is coded in
gametes, my sex is inherent to my existence. Likewise my eye, hair, and skin
colour are inherent to me. Note what little follows from such clear examples
of inherent facts: certainly nothing at all about the behaviour in which I will,
may, or must engage. Although I can never alter my gametic sex and eye-
hair-and-skin colour—these being among the conditions of the very existence
of me—I can undergo a sex-change operation, die my hair, develop vitiligo,
and so on, all of which may transform how I look, act, and feel, and how
I and others perceive me. Inherent facts, metaphysically foundational
though they are in defining me as me, are substantively rather trivial.
To say that a relationship is inherently procreative is a different
matter. Depending on how one reads the suffix '-ive', it is to say either
that procreation—a factive implying the existence of progeniture—con-
stitutes the relation's identity conditions, or else that the mere potential for
procreation does, whether that potential is ever actualized or not.
If the former, then marriage is not inherently procreative, much less
naturally so. If procreation were inherent to marriage, it would be a
permanent feature of it. But no couple, married or not, is naturally per-
manently procreative, simply because no one is permanently procreative
tout court. If procreation were inherent to marriage, it would be a
condition of the existence, and persistence through time, of any given
marriage. Anyone who thinks that the essence of their union is to produce
children are mistaken unless they are ready to consider their marriage as
having never existed as a marriage at all should it result in no children: a
firefighter who has never chanced upon a fire to fight is a firefighter in
name only; a novelist who dies without writing a novel is at best a
novelist-wanna-be; likewise, a relation whose metaphysical condition of
identity is to procreate but which does not procreate is more than a failed
relation, it is no relation at all. So marriage is not inherently procreative
in the factive sense. What must be meant is the potential sense.
Now, 'potential' is one of those slippery words that lends itself all-
too-easily to cherry-picking. The limits of the potential are none other
412 ADELE MERCIER

than the limits of our imagination, which is why the qualificative 'natural'
is needed in this context. 'Procreative' is code for: having the capacity-in-
principle to procreate together without third party intervention. But of
course this won't do. Not all married couples have the capacity, even in
principle, for natural procreation: octogenarians with no natural procreative
potential whatsoever can marry. So we know that the potential for natural
procreation is not a necessary condition for the existence of a marriage.
How convincing is the requirement, octogenarians notwithstanding?
Not at all. Absent a fertility potential check before marriage, no two
people know that they are even in principle capable of procreating. Given
infertility rates, plus the fact that some people who are individually fertile
are not compatibly fertile, heterosexual couples do not know that they are
potentially procreative together, much less without third-party interven-
tion. Yet natural procreative potential compatibility checks are not marriage
requirements. Moreover, we do not expect couples to get divorced once
they realize that they cannot naturally procreate together. We even judge
as contemptible husbands who divorce their wives for this reason in
cultures where this happens, which we ought to find perfectly reasonable
if natural procreation is of the essence of marriage (as perfectly reason-
able as firing a housecleaner who doesn't clean house). The requirement
that marriageable people have the capacity-in-principle to procreate
smacks of disingenuineness.
Of what relevance anyway should a capacity-in-principle be in a
context where the probability of procreation happening on any given try
is so low as to give the illusion of miracle every time it happens? However
intended or dearly desired, that natural procreation between couples happens
at all is in every case a completely contingent accident. Inherent to marriage
is, at the best of times, only the desire to be naturally procreative. But
desires are just that. And besides, we marry people who explicitly deny any
such desires.
If procreation, potential or factive, is not essential to marriage,
natural procreation is even less so. Somerville maintains that "marriage is
a compound right: the right to marry and found a family" (Somerville, EI,
p. 102). The right to found a family is equivocal. If it entails a duty on the
part of the state not to interfere with natural biological reproduction
(allowing people legally to have children if nature will naturally so allow
it), it has little to do with marriage, witness China's population control-
 ON THE NATURE OF MARRIAGE 413

policies, which impose reproductive constraints on couples even if

married. If it entails a duty on the part of the state to respect the innate
bond and special interest between human parents and their natural
offspring, a fact about humans to which Somerville is sensitive, it also has
little to do with marriage: if the innate bond between parent and child is
worthy of respect, it is worthy of respect whether the child is born in or
out of wedlock. The only "right to found a family" to which marriage is
relevant is the prima facie right of parents to be the legal guardians of
their natural offspring. The existence of such a right does not entail that
the family must be founded by natural biological reproduction. That is a
separate moral matter, one whose resolution so far has strayed beyond the
presumption in favour of the natural. Some families are founded by
adoption, not a natural, but a legal process. Some families are produced
through non-natural means like in vitro fertilization, some of these using
the procreative gametes of donors through legal processes of appropria-
tion. Non-natural procreation by IVF is something which according to
Somerville "many of us have come to accept should be made available to
couples who do not regard it as immoral." (Somerville, EI, p. 149)
Somerville allows that heterosexual couples who found their families thus
can be married, despite their incapacity to procreate naturally, without
third party intervention.9
Somerville hastens to add that "whether [IVF] should be available to
same-sex couples, or single women, is a much more contentious issue,"
the contention being, once again, embroiled in a cherry-picking respect
for nature. The only difference between children of same-sex couples
conceived by IVF from Donor Gametes and children of opposite-sex
couples conceived the same way, is the fact that the latter but not the
former have opposite-sex parents; it follows that the only ground on
which Somerville can object to IVF-DG for same-sex couples (and single
women) is "complementarity in parenting—a child's need for both a male
parent and a female parent." (Somerville, EI, p. 103) This need is so great
in Somerville's mind that it is apparently better never to have existed at
all than to be deprived of it.
Now, complementarity in parenting may be desirable as the null hy-
pothesis, but it is, and has always been, something of a luxury. It's not for
nothing that it takes a village to raise a child: many children past and present
throughout the world have had at least one parent off to war, to jail, to
414 ADELE MERCIER

work in someone else's home or country, away for long hours in the fields,
mines, offshore, or at the office, if not outright dead. If complementarity
in parenting is as important as Somerville makes it out to be, she should
be devoting at least as much effort to improving complementarity in babysit-
ting, school teaching, sport coaching, and grandparenting, given how much
time children spend, and have always spent, with non-parental adults.
Somerville is guilty of confusing the natural biological reality of re-
production on the one hand, and matrimony—from the Latin words "mother"
(mater) and "money" (moneta)—on the other. The exact sense of matrimony
is "legal maternity," an institutional arrangement regulating who is to
assume parental rights and responsibility for children, with "holy matrimony"
being a way of becoming a parent that is sanctioned by the Church. But
of course neither natural biological reproduction nor respect for the
natural bond to one's progeniture require marriage, any more than marriage
requires them. The right to found a family that is conferred by marriage,
however much one might think of it as stemmingfromNatural Law, is at
best the right to have one's natural offspring countenanced by law as one's
legitimate children. With respect to founding a family, marriage at best
concerns matrimony—legal lineage —not procreation or hneage tout
court. When Somerville rhetorically asks: "should we replace natural par-
enthood with legal parenthood as the basic norm, as same-sex marriage
does?" (Somerville, EI, p. 101), she fails to appreciate that the right to
found a family that marriage confers is, and has always been, a right to
legal recognition of parenthood, not to natural parenthood. Somerville
reveals a confusion between natural facts and social facts when she claims
that extending the reference of 'marriage' to same-sex couples turns the
concepts of marriage and the family into "merely social constructs":
What should be the norm on which families are established in our society?
Do we want to keep the biological links between parents and children—that
is, a natural biological reality—as that norm? Or should the norm be two
adults' committed relationship to each other—that is, the concepts of
marriage and family are merely social constructs? (Somerville, EI, p. 101)
This is a mistake. Nature needs no social sanction for producing families.
Marriage, and the right it confers to have one's family legally recognized
as such, have always been social constructs.
Natural parenthood does not require marriage. It is legal parenthood
that marriage, any marriage, promotes (if it promotes parenthood at all).
 ON THE NATURE OF MARRIAGE 415

Same-sex marriage no more promotes legal parenthood as the norm to the

detriment of natural parenthood than does adoption. Nor is there a
problem with legal parenthood being the norm. It already is. Though we
behave with the presumption that biological parents are best positioned to
be legitimate parents, we know from the sheer number of abandoned and
ill-treated children how extensively defeasible such a presumption is.
The suggestion that marriage requires inherent procreative capacity
is revealed as the rhetorical device it is by how unflinchingly we marry oc-
togenarians and other certified infertile heterosexuals. When asked by the
Ontario court why, on such basis, these should be allowed to marry, the
Attorney General of Canada made the point that such people, but allegedly
not homosexuals, belong to a group that is inherently procreative.10 This
view is also held by Somerville: "unlike same-sex couples, infertile
opposite-sex married couples, or ones who don't want children, do not
transgress the general norm." (Somerville, EI, p. 103) Now, by what possible
definition of "belonging to the same group" do octogenarian couples and
infertile heterosexual couples—but not same-sex couples—belong to the
same group as procreative couples, such that they—but not same-sex
couples—should be allowed to marry? The only difference is that same-
sex couples are homosexuals.
So we started off with the question: Why can't homosexuals marry?,
and now we have the argument in its full circularity: Homosexuals cannot
marry because they are homosexual.
To be fair, Somerville does have legitimate worries. She worries that
scientific creation of life may be encroaching on natural procreation of
life, that humans are on their way to being produced rather than repro-
duced. This is not the place to debate that issue. Somerville's concerns
here reveal how confused she is about her own battles. They target not
marriage in fact, but life. She worries that children produced by IVF from
DG will feel like "genetic orphans." I very much doubt that such feelings
are deeply harmful;" but if they pose as serious a harm to humans as
Somerville feels, then her presumption for the natural should oppose her
to IVF from DG tout court, not just for reproduction within same-sex
marriages. She comes close to seeing this herself when she says:
If we decide that we want marriage to continue to uphold natural parenthood
as the norm, then ethically we must provide for exceptions to that norm. That
means we will as a society have responsibilities to support and protect same-
416 ADELE MERCIER

sex families—although, in my view, we should not actively help to create

them. (Somerville, EI, pp. 101-02)
But here again she misses her target. If being the product of scientific
manipulation is that detrimental to the beings of humans, then what we
should not actively help to create are not same-sex families but donor-
conceived children, regardless of whether they are destined to grow up in
a heterosexual, same-sex, or monoparental family. If it is such an egregious
harm to a human to have such origins, it is surely not one that mere com-
plementarity in parenting can make up for. IVF children will feel no different
about their origins for being parented by heterosexuals. Here again, Somer-
ville is confusing reproduction and matrimony.
Likewise, if complementarity in parenting is as crucial as she thinks,
her opposition should target gay adoptions, not gay marriages. But it is
hardly child-friendly to deny an abandoned child the opportunity to be
cherished within a same-sex family.
Moreover, it is discriminatory towards same-sex couples to make
them solely responsible for reducing the number of donor-conceived
humans while heterosexuals go on doing it with impunity.
According to Somerville, "same-sex couples deserve equal protec-
tion in their relationships. This can be provided by legally recognizing
civil unions—which do not implicate children's rights" (Somerville, EI,
pp. 102-03) But of course civil unions implicate children's rights! Unless
one is to ban children from civil unions, they implicate the rights of
children born or adopted into those unions every bit as much, and in the
same way, as marriages implicate the rights of children born within
marriages. If marriage is a good for children, perhaps because of the
stability that it fosters or for whatever reason, it is a good for all children
no matter how they were conceived and whether they joined their families
by conception or by adoption.
Somerville says:
Opposite-sex marriage establishes as the norm and institutionalizes the in-
herently procreative relationship between a man and a woman, and in doing
so establishes children's rights with respect to links to their biological
parents and families. Because same-sex marriage is not an inherently pro-
creative relationship, recognizing it necessarily negates that norm, and with
that, children's rights in this regard. If we want marriage to continue to
 ON THE NATURE OF MARRIAGE 417

establish and protect those rights of children in general, marriage cannot be

extended to include same-sex couples. (SomerviUe, EI, pp. 102-03)
SomerviUe claims that children have rights to biological parents and
families.12 Even assuming that children have such rights (an assumption
that is hardly intelligible, let alone one for which SomerviUe provides any
argument), it is difficult to see why granting same-sex couples the right to
marry affects the norm about how children come into being. As long as
heterosexual couples procreate by natural means, and as long as more het-
erosexual couples than homosexual couples reproduce, the norm will be
that children come into existence the natural way. Since the ratio of het-
erosexual to homosexual couples is estimated as at least 9-to-l, and absent
reasons to expect more homosexuals than heterosexuals in absolute terms
to choose to reproduce, as long as heterosexuals remain fertile, the norm
will remain the same. Once again, SomerviUe confuses reproduction and
matrimony. The norm about how children come into being would remain
the same even if all heterosexuals shunned marriage and only homosexu-
als henceforth chose to get married.
SomerviUe claims that same-sex marriage nullifies all children's
right to biological parents. She explains:
When marriage is limited to the union of a man and a woman, it establishes
as the norm children's rights to both a mother and a father, preferably their
own biological parents, and to be reared by them, unless there are good
reasons to the contrary in the "best interests" of a particular child. Adoption
is an exception of this kind. Same-sex marriage unavoidably nullifies this
right for all children, not just those brought into same-sex marriages. It does
so because marriage can no longer establish as the norm on which the family
is based the natural, inherently procreative relationship between a man and a
woman, and therefore can no longer establish the rights of children to both a
mother and a father. (SomerviUe, EI, p. 149)
Now, let's get this argument straight. SomerviUe is claiming that:

(1) The norm is that families are produced by natural reproduction.

(2) This norm establishes the rights of children to biological parents.
(3) As long as the norm for reproduction is natural reproduction, the
children have rights to biological parents—that is: a sufficient
418 ADELE MERCIER

condition for children's rights to biological parents is that natural

reproduction be the norm.
So

(4) If we allow same-sex couples to marry, the norm on which the

family is based ceases to be natural reproduction.
(5) If the norm ceases to be natural reproduction, then the norm ceases
to establish the rights of children to biological parents —that is: a
necessary condition for children's rights to biological parents is
that natural reproduction be the norm.
So

(6) If we allow same-sex couples to marry, all children lose their

rights to biological parents.

A detailed look at this argument shows it for the sophism it is. (2) is
false: mere norms do not establish rights, mere changes in norms do not
take them away. (3) and (5) are either truisms or falsehoods, depending on
how one interprets them: natural reproduction is necessary and sufficient
for children's rights to biological parents in the completely trivial sense
that biological parents would not exist, hence could not form the objects
of rights, unless natural reproduction existed, and natural reproduction by
definition entails biological parents; (3) is false in any more substantive
sense: natural reproduction (whether or not the norm) is not sufficient for
children's rights to knowing, being reared by, or having live biological
parents, witness orphans and adoptees, and the fact that if something they
breathed threw all birthing mothers into murderous depressions, all
children would (read, should) end up in foster care; (5) is false in any sub-
stantive sense, witness the fact that if no children were born through
natural reproduction but only through non-natural reproduction,
Somerville herself would still go on claiming that their right to biological
parents had been violated, thereby showing that, despite what she claims,
even for her, the right is not a function of the norm but of something that
transcends anything we do, including whom we allow to get married. So
(4) is wrong: marriage is one thing, reproduction another. Finally, the
reasoning to (6) is fallacious. The fact that some parents beat their
 ON THE NATURE OF MARRIAGE 419

children does not nullify the rights of all children not to be beaten. The
existence of exceptions to families being founded by natural reproduction
in no way affects the rights of biological children to their own parents. If
it did, adoption would also nullify such rights. If children have rights to
natural conditions of existence, then what should be outlawed is IVF-
produced life. Since not only, and not all, same-sex marriages found
families by IVF, and since same-sex couples can found families by IVF
whether married or not, banning same-sex marriages throws out the water
but not the baby.13
Somerville worries about children. But the short of it is, that what
children need far more, by orders of magnitude more, than ideology about
metaphysical human essence and norm-establishing institutions, Margaret,
is love, lots of it, and stability. (And the last thing donor-conceived
children need to hear is that purported ethicists disapprove of their very
existence.) Marriage promotes love and enhances stability. Many a gay
couple has love to give, and many an abandoned child would kill to have
one, let alone two, dads. Lesbians who give birth provide grandparents
and aunts and uncles and cousins and friends the opportunity to love, and
many an IVF child ends up with a "wider biological family" than many a
natural child (just think of China). Deliberately restricting same-sex
couples to civil unions is unfair both to the children in those unions if it
deprives them of increased chances at stability, and to same-sex couples
if they alone must bear the cost of reducing IVF-produced life. A society
that legally recognizes same-sex unions as marriages is more just, more
love-affirming, and more child-friendly than its opposite.
Finally, I cannot resist ending with an argument which illustrates
vividly to what extent the appeal to nature is spurious. It comes from
Somerville's colleague, Katherine Young.14 According to Young (believe
it or not): humans have grown used to taking their heterosexuality for
granted, and they trust that their heterosexuality is not vulnerable to
cultural change. But humans are not ordinary animals governed by
instincts and drives. What instincts and drives do for animals can only be
accomplished for humans by culture. Heterosexual marriage is culture's
way of fostering heterosexuality, to guarantee that humans mate and
propagate the species. Allowing same-sex couples to marry would remove
the cultural support necessary for heterosexuality, thus threatening the re-
production of our species. (!) I can only wonder how long Somerville
420 ADELE MERCIER

would go on defending the sacredness of nature were Young right about

the natural tenuousness of heterosexuality in humans.

Adele Mercier
Queen's University
Kingston, Canada
LOGOS—Universitat de Barcelona, Spain

NOTES

1. Same-sex marriage was legalized through the courts in the provinces of Ontario
(10/06/03), British Columbia (8/07/03), Quebec (19/03/04), Yukon Territory (14/07/04),
Manitoba (16/09/04), Nova Scotia (24/09/04), Saskatchewan (5/11/04), Newfoundland
(21/12/04), and New Brunswick (23/06/05). The Civil Marriage Act passed by the Parlia-
ment of Canada made same-sex marriage legal elsewhere in Canada effective July 20,
2005.
2. Expert witness affidavit in Egale v. Canada (Attoney General),filedin the Supreme
Court of British Columbia, in the matter of Applications for Licences by Persons of the
Same Sex who Intend to Marry; and in the matter of The Marriage Act and The Judicial
Review Procedure Act (Vancouver Registry No. LOO 1944; L002698; L003197), August
2001; and in Halpern v. Canada (Attorney General),filedin the Ontario Superior Court
of Justice (Court Files 684/00, 30/2001), November 2001.
3. All references are to Stainton, affidavit filed in the same courts.
4. Mercier (2007). "Meaning and Necessity: Can Semantics Stop Same-Sex
Marriage?" in Essays in Philosophy, vol. 8, No 1, available at:
http://www.humboldt.edu/~essays/mercier.html
5. Margaret Somerville (2006). The Ethical Imagination: Journeys of the Human
Spirit, Anansi Press. From the Massey Lectures, broadcast November 2006, CBC Radio
Ideas series.
6. As against Adballa Idris Ali, Director of the Centre of Islamic Education in North
America based in Kansas City, Missouri, who claims that "it would become harder for
Muslims to participate in Canadian society if that society insisted on acceptance of unions
that our religion teaches us are an affront to Allah." See affidavit filed in the stated courts.
Quoted from Reasons for Decision of the Ontario Superior Court of Justice, p. 13.
7. See Somerville's affidavit filed in the stated courts.
8. See affidavit filed in the stated courts. Quoted from Reasons for Decision of the
Ontario Superior Court of Justice, p. 12.
9. There is an ambiguity in Somerville's formulation. Some opposite-sex infertile
couples found families by IVF of their own gametes, others from donor gametes. Perhaps
Somerville would object to the latter. The fact remains that IVF from DG is practiced by
heterosexual couples.
10. The "Belongs-to-a-Group-that-has-the-Rational-Capacity-to-Procreate-Without-
Third-Party-Intervention" distinction thankfully did not much impress the judges. The
 ON THE NATURE OF MARRIAGE 421

disingenuineness of the distinction was hard to keep disguised when Attorney General of
Canada Roslyn Levine found herself actually saying: "I know it sounds lame your
Honours but.. . . "!
11. People who result from IVF typically have gametes in common with at least one
parent. That is more genetic commonality than have biological orphans. Loved orphans
may be curious about their genetic origins but need not suffer from grief to the point that
diey are better off never having existed.
Somerville thinks "there is a world of difference" between orphans who will never
know their biological parents and IVF-conceived children who are brought into existence
by people who know that they will never know their biological parents. Yet the Catholic
doctrine of Killing vs. Letting Die, to which Somerville undoubtedly subscribes if she is
consistent, prescribes that orphans who knowingly will never know their biological
parents be brought into existence rather than aborted even when it is their very existence
in the womb that will kill their mother.
12. According to Somerville, children have (1) the right "to know the identity of their
biological parents," (2) the right "to both a mother and a father, preferably their own bio-
logical parent," and (3) the right "to come into being with genetic origins that have not
been tampered with." (Somerville, EI, p. 147) All these rights are problematic. (3)
compounds the tricky question of therightsof future people, with the trickier question of
havingrightsover the conditions of one's very existence.
If Somerville does not think this opens up a mean Pandorra's box, I suggest she
think again: if (3) is a right, then children who are otherwise fully healthy should be
allowed to sue their parents for wrongful life. What remedies should be awarded to viola-
tions of such rights? (1) and (2) violate the truism that "ought implies can." It is difficult
to fathom to whose duty suchrightswould correspond. (To [1 ] a duty on the part of women
not to have sex with multiple partners lest they not know from whom they conceived a
child? A duty on the part of the government to keep track of everyone's DNA lest someone
wish to confirm their genetic origin? To [2], a duty on the part of parents not to die? A duty
on the part of all heterosexual couples to adopt children?)
13. Let's face it: The only threat to the norm that families are produced by natural re-
production comes from the possibility that more people, by choice or by necessity, might
reproduce by IVF than naturally. That more homosexuals than heterosexuals should
choose to reproduce is only one instance of this possibility. Another, at least as realistic, is
that earthly conditions change so as to make most people infertile. How should humanity
react, according to Somerville, in such an eventuality? Should we force fertile heterosex-
uals to reproduce, in order to preserve me norm? (That would surely make for happy
children . . . ) Or should we preserve the norm by preventing people from reproducing
through non-natural means, thereby guaranteeing the disappearance of our species?
14. Katherine Young (Dept of Religious Studies, McGill University), affidavit filed in
the stated courts. The argument was reiterated on the eve of the Ontario appeal in a com-
mentary to The Globe & Mail (May 3, 2003).