Same-Sex Marriage is Marriage: The Argument From the Merits

I’d like to talk about the arguments for and against same-sex marriage – the so-called “merits” of the case. The legal arguments surrounding Judge Vaughn Walker’s decision to strike down proposition 8 are complex and interesting. The political gambles made by Boies and Olson on the plaintiff’s side, and by Walker on the judge’s, are exciting. Nonetheless, the legal aspect of this case has been covered in some depth. Moreover, because of the peculiarities of Walker’s decision, it revolves around whether or not California has proven that it has a reason for the law (other than moral disapproval of homosexuality), not whether it has a good reason. John Holbo has penned a wonderfully lucid exposition of the discussion, made all the better by his not being a lawyer. Read the whole thing, and the post by Orin Kerr that he links to.

Again, however, I’d like to talk a little bit more about whether California has a good reason, not whether it has any reason. And while I think the case against same-sex marriage crumbles wherever you prod at it, the people making that case do understand what the debate is about. As they so often proclaim, we are arguing over the definition – and, by implication, the purpose – of marriage. First, let’s get the “traditional” definition of marriage. According to the lawyers for proposition 8, “the state’s interest in marriage is procreative.” How so? Well, there are two reasons that are usually offered – which I will call the weak and the strong version. The weak version is more common, and we have a cogent statement of it from Nelson Lund:

Only unions between men and women are capable of producing offspring, and every civilization has recognized that responsible procreation is critical to its survival. After the desire for self-preservation, sexual passion is probably the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally and only after nine months.

[…]

The fundamental purpose of marriage is to encourage biological parents, especially fathers, to take responsibility for their children. Because this institution responds to a phenomenon uniquely created by heterosexual intercourse, the meaning of marriage has always been inseparable from the problem it addresses.

Because the purpose of marriage is to encourage parents to raise children, the definition of marriage must only include couples who can become parents. Marriage is about babies – promoting their creation, and ensuring their upbringing. If we allow same-sex marriage, according to this argument, we will a) allow couples to marry who don’t fit the logical definition, and b) submit adopted children to inferior or “incorrect” upbringings.

This is not the same view of “traditional marriage” put forward by Ross Douthat yesterday in the New York Times; and by Robert George a year ago, in a memorable WSJ op-ed. Both these writers present the Catholic view of marriage. As Douthat explains, it does maintain a procreative purpose, but the symbolic importance of procreation extends beyond the practice of childrearing. His is “a particular vision of marriage, rooted in a particular tradition, that establishes a particular sexual ideal. This ideal holds up the commitment to lifelong fidelity and support by two sexually different human beings…as a uniquely admirable kind of relationship.” It is symbolically and spiritually special because it forms a “microcosm of human civilization.”

The power of marital union, according to this view, inheres in the sexual act itself. As George puts it, “Such acts unite husband and wife at the most fundamental level and thus legally consummate marriage whether or not they are generative in effect, and even when conception is not sought” (emphasis added). This is a much, much bolder statement of the procreative argument. Rather than claim that same-sex couples can’t marry because they make poor parents, or because they can’t be biological parents, George argues that they can’t marry because their sex isn’t the same kind of sex. He even notes that “as a comprehensive sharing of life – an emotional and biological union – marriage has value in itself and not merely as a means to procreation.” Everything is the same for a same-sex couple, except the physical nature of the relationship. To repeat: according to Robert George, gay marriage isn’t marriage because gay sex isn’t sex. He makes the argument explicitly; I think it’s strongly implicit in Douthat’s article.

The harm that gay marriage would create is different in this argument. It has little to do with children. Rather, it would symbolically unravel the foundation of marriage itself. Douthat on the consequences of gay marriage:

But if we just accept this shift, we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.

So these, then, are two “traditional,” procreative versions of marriage. I put “traditional” in quotes, by the way, because it is not clear that a procreative definition of marriage actually is the traditional one. Douthat acknowledges this fact, saying that “What we think of as “traditional marriage” is not universal.” Judge Walker certainly agrees. “Never,” he pronounces, “has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. FF 21.” So what does he think constitutes marriage? Here’s a passage from the opinion, which you should all read at least half of:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33.

According to Walker, the “comprehensive sharing of life” George identifies is not limited to opposite-sex couples. Denying same-sex couples marriage would deny them the enjoyment of this benefit on the same level as opposite-sex couples. Allowing same-sex marriage, on the other hand, encourages stable households, while disallowing it removes that possibility for a large fraction of the populace.

For now, then, here are our three definitions of marriage: procreative union for the purposes of childrearing; procreative union, recognized as symbolically important; and the sharing of life in a loving household. The first implies an instrumental purpose: be fruitful and multiply, for the good of the species. The second implies a particular moral vision rooted in the Catholic theory of natural law. The third implies a purpose that is good in itself: the emotional union of human beings. How do we find a definition of marriage that we can agree on?

I reckon there are a lot of people who would agree with Lund’s definition, but not with George’s or Douthat’s, because Lund seems more concrete and practical. Others will side with the Catholics, because they seem more consistent logically. I say, don’t be fooled by either. They have the same core argument, which is an essentialist distinction between male and female, founded on metaphysical conjecture that can form no sound basis for legislation. The belief that the “emotional and biological” bond between man and woman is somehow more special than that shared by a man and a man, or a woman and a woman, comes from a spiritual distinction between male and female, in addition to a physical one. This, I think, is quite obvious. The same logic applies, however, to Lund’s argument: same-sex couples can’t be parents because they weren’t meant to be parents. Or because they make worse parents, which is an empirical question. And as best I can tell, that’s fairly settled the other way.

So what we have is an argument that same-sex couples can’t marry, because they can’t have “real” sex or be “real” parents, because they shouldn’t have gay sex or be gay parents, because they’re not supposed to do those things. Without resorting to openly moral reasoning, of the type “God made us male and female,” these arguments are fatally circular – a painfully obvious fact once you get an inch below the surface. Of course, Douthat does mention repeatedly that his idea of marriage is a “particularly Western understanding, derived from Jewish and Christian beliefs about the order of creation.” Andrew Sullivan’s already made the obvious follow-up to that, asking why he insists his “ideal be enforced as an act of civil exclusion in the secular sphere, even on people who are atheists.” I don’t know what Douthat’s response will be or could be.

And how about the other side? Pretty much every married couple hopes to have a child. Even if we accept that same-sex couples should be allowed to marry, why should we reject a procreative or parent-centered definition of marriage in favor of a humanistic one? And why wouldn’t this “new” definition erode the foundations of monogamy? And why, for God’s sake, would there be less of God in one than the other? Insofar as humanism counts as a private moral or religious belief, that is.

The bond formed by marriage is often – should be, in my opinion – so total that it encompasses all possible union. Two people become attached socially, psychologically, physically, and economically. They share themselves fully, and marriage provides a way for the state to treat them as a unit when appropriate, and as individuals when appropriate. It also provides rules for what happens when the union is separated (by whatever means). That, it seems to me, is the legal rationale for marriage, under which childrearing is logically subsumed.

There’s my alternate definition. Why is it less privately moral? Because it assumes less about the motivation for getting married, only noting the tremendous importance that some couples attach to it. And why is this sort of marriage inherently monogamous? Because there’s no way to give yourself fully to a second person while you’ve already given yourself to a first person, in my opinion.

I’ve rambled for too long. My point is this: ostensibly procreative definitions of marriage, which seem to have a pretty reasonable basis, and which seem to rule out non-procreative unions such as same-sex couples, are actually about copulation rather than procreation. Either that, or they are about parenthood. Proposition 8’s supporters allege that same-sex marriage makes a logical and moral leap which will undermine our reasons for having marriage in the first place. If that leap can be made, it has been made already, in defining marriage either as a sexually special union or as a union for the purposes of childrearing. Neither of those things applies specifically to opposite-sex couples, unless you consider “man” and “woman” to be ontologically separate categories established by the Deity. In which case, go ahead and deny the sacrament of marriage to same-sex couples in your church – but stay out of the courtroom, if you would, please.