AN ARGUMENT AGAINST SAME-SEX MARRIAGE
P1. Same-sex marriage implies that it does not matter whether families (and children) are headed by a man and woman, two men, or two women
P2. Implying that it does not matter whether families (and children) are headed by a man and woman, two men, or two women undermines children’s rights to be in a family headed by their mother and father
C. Therefore same-sex marriage undermines children’s rights to be in a family headed by their mother and father
CONSERVATIVE COMMENTARY
This argument is also used against:
Same-sex marriage grants all adults a new right, namely the right to marry someone of the same sex. How does this new right affect the existing rights of non-adults (i.e. children)?
According to the UN Convention on the Rights of the Child, which is the world’s most widely ratified human rights treaty in history:
The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
https://www.unicef.org/child-rights-convention/convention-text#
Traditional marriage upholds this right by implying that families (and children) should be headed by a mother and father. Same-sex marriage, however, undermines this right by implying that it does not matter whether families (and children) are headed by a mother and father, two mothers, or two fathers.
From Sherif Girgis, Robert P. George, & Ryan T. Anderson:
…to the extent that some continued to regard marriage as crucially linked to children, the message would be sent that a household of two women or two men is, as a rule, just as appropriate a context for childrearing, so that it does not matter (even as a rule) whether children are reared by both their mother and their father, or by a parent of each sex at all. On the other hand, to the extent that the connection between marriage and parenting is obscured more generally, as we think it would be eventually, no kind of arrangement would be proposed as an ideal.
Girgis, Sherif and George, Robert and Anderson, Ryan T., What is Marriage? (November 23, 2012). Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010, Available at SSRN: https://ssrn.com/abstract=1722155
OBJECTION: “The word parents in the UNCRC does not necessarily mean the biological parents”.
While the word parents can be ambiguous, in the context of the convention, it is clear that it refers to the biological parents of the child. This is confirmed in the concluding remarks from the UN Committee On the Rights of The Child to Luxembourg. Uzbekistan, St. Vincent and the Grenadines and France. See UNICEF’s Implementation Handbook For The Convention On The Rights Of The Child
In its concluding observations to Uzbekistan, the UN Committee On the Rights of The Child listed as a recommendation to:
ensure that adopted children at the appropriate age have the right to access to the information of the identity of their biological parents and be prepared for it
https://www2.ohchr.org/english/bodies/crc/docs/co/CRC-C-UZB-CO-3-4.pdf
In its concluding observations in 2005 to Luxembourg, the UN Committee On the Rights of The Child said it:
..regrets that some of its concerns and recommendations have been insufficiently addressed… the partial compliance with article 7 of the Convention in relation to the right of children born anonymously to know their parents
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsgnXZ0ChBsrwmcy8%2F%2BFNoDEQtfZMnGjglkFB%2BxKpWasNYc4EqdNBPqiuWFcgn%2B4BqX9eCc5QVeCkxVAf7%2BDiNwLb0FEHeBidVuOJcX%2FnPIeU
Then goes on to say further:
“The Committee remains concerned about the fact that the children born anonymously (‘under x’) are denied the right to know, as far as possible, their parents… [and] urges the State Party to take all necessary measures to prevent and eliminate the practice… “In case anonymous births continue to take place, the State Party should take the necessary measures so that all information about the parent(s) are registered and filed in order to allow the child to know – as far as possible and at the appropriate time – his/her parent(s).” (Luxembourg CRC/C/15/Add.250, paras. 28 and 29)
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsgnXZ0ChBsrwmcy8%2F%2BFNoDEQtfZMnGjglkFB%2BxKpWasNYc4EqdNBPqiuWFcgn%2B4BqX9eCc5QVeCkxVAf7%2BDiNwLb0FEHeBidVuOJcX%2FnPIeU
In its concluding observations to St. Vincent and the Grenadines, the UN Committee On the Rights of The Child said:
The Committee is concerned that many children born out of wedlock do not know the identity of their father, inter alia, because of societal pressures that cause mothers to be reluctant to file a paternity action. Noting the supportive role that the Department of Family Services is already playing in this regard, the Committee recommends that the State party further facilitate and support the activities (including paternity procedures) which will contribute to the full implementation of the rights of children to know their parents.
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2f15%2fAdd.184&Lang=en
In its concluding observations to France, the UN Committee On the Rights of The Child said
the Committee remains concerned that the rights enumerated in article 7 of the Convention may not be fully respected by the State party and that the right to conceal the identity of the mother if she so wishes is not in conformity with the provisions of the Convention…. The Committee recommends that the State party take all appropriate measures to ensure that the provisions of article 7, especially the right of the child to know, as far as possible, his or her parents, be fully enforced in the light of the principles of non-discrimination
http://korczak.fr/partenaires/ong/cdre_recomm_040604.pdf
OBJECTION: “The UNCRC does not mean that children have a right to be raised in the same household as their parents. Parents can still care for their children even if they don’t live with them.”
It could be argued that the UNCRC only requires that the biological parents ensure the child is cared for (rather than having to live with and raise the child themselves), perhaps by ensuring a competent family is able to take over the direct care, either agreed before or after the child’s birth. However the commentary in the handbook notes that:
[T]he right upholds a general principle running through the Convention – that in ordinary circumstances, children are best off with their parents.
https://www.unicef.org/ecuador/Implementation_Handbook_for_the_Convention_on_the_Rights_of_the_Child.pdf
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