The Marriage of Likeness: A Mild Dissent

I have always been sympathetic to the right of people of any sexual orientation to cohabit without interference from any outside agency, religious or secular.  I regard the sexual practices of partners, so long as they do not cause unacceptable pain to each other or scare the horses, to be the business of the partners.

I not only think but know from experience that a child raised by a loving gay or lesbian couple is as well off as a child raised in a loving heterosexual household, and better off than a child raised in an unloving household.  I find it amazing that same sex couples should not have full access to the health benefits and inheritance and taxation privileges that heterosexual couples enjoy.  I do not believe that the gay life style is any more “predatory” or “proselytizing” than the lifestyles of straight men and women.

But I am opposed to gay marriage.

I can’t blame my gay and lesbian friends for the way the debate has gone, the way the battle has had to be waged.  You can’t always choose your enemies and the enemies of gay marriage have been fighting with Bibles and neolithic ideas of social organization.

I also see that with New England and much of the rest of the country moving in the direction of legalizing same-sex marriage, this little contribution will flicker and die a quiet death and seldom be referred to in a year’s time.   Time and tide are irreversibly on the side of legalization, and when legal, gay marriage will be seen as one of those things that had to happen.  Perhaps it is right that it should happen.  Its supporters certainly and honestly believe it is a moral victory—a “win” for social justice and equality.  In a few years, when the Defense of Marriage Act lay in tatters, we will look back on the days when gays couldn’t get married with the same disdain as we have for whites-only waiting rooms and men-only elections.

Or will we?  Two “auxiliary” movements in the past thirty years have invoked the catechism of the civil rights movement.  One of them is feminism.  As a philosophy it has moved from marginal to mainstream—like all movements that destroy the premises of their foundation as a condition of their success.  The other is gay rights.  These movements have operated chiefly by analogy to movements that opposed the denial of basic civil rights and have resulted in changes that even confirmed political troglodytes would have to agree are for the better.  No woman should be denied any right available to a man.  No black should be denied a right available to a white.

It isn’t worth overwriting this: we take these things for granted, like hot days in the tropics.  As the founding fathers put it with their penchant for economy: “self evident.”

Is the right to vote and the right to earn a living, or to live in peace without threat and violence  the same as the right to live together as a married couple?

In the first two cases, the denial of a right creates a hardship.  I may choose not to vote or not to work, but that does not constitute a case for abridging this right. (“If you don’t use it, lose it.”)  I also have the right to live free of fear, violence, overt expressions of intolerance—but this right to peace and security is merely the extension of a right that exists uniformly within a democratic system.

As an extension of the right to happiness, which the founders listed among the “unalienables” it seems to me that the state should also extend to homosexuals the right to live together, free of fear and harassment, and may extend to such couples other rights, regarding property, taxation and inheritance and the adoption and raising of children.  There is stronger ideological support for the right to happiness and (perhaps) personal liberty than there is for a right to privacy.

I am not convinced however that in addition to extending a right of union to gay couples as a “civil” liberty the state  has any obligation to extend the  benefit of marriage: first, because there is no evidence that the denial of this benefit constitutes a hardship and second because  granting the benefit  actually negates the purpose  for which the benefit was created.

If the example of marriage is too emotionally charged to serve as an example, imagine a movement of older citizens who demand the right to  serve as infantrymen in a popular war and argue that theiy are being marginalized in favour of the youth and stamina of new recruits.  The army suggests that the war effort needs them in other capacities, will permit them to serve as auxiliaries, but not in the infantry because special conditions apply to enlisted men at the front.  A benefit has been denied.  Discrimination has taken place.  But the state has defended in its own interest an “institution” regarded as important for its efficient operation.

The principle here—analogy–is a weak one however: “the state cannot deny to a black what it offers to a white” is not equivalent to the statement “the state cannot deny to a gay couple what it offers to a straight couple.” This is not because being black is a matter of skin colour and being gay is a matter of choice.  Most lesbian and gays, though not all, would reject the latter statement. It is because rights are individual rather than dual or multiple.   Furthermore, the state can only be in the business of securing conditions–such as personal freedom–under which happiness can be “pursued.”  It can’t define or guarantee  a state of personal  happiness.  The state is under no compulsion to secure the rights of a pornographer, for example, just because his work gives pleasure to millions.

For centuries dating back to the start of the common era, marriage was the church-approved form of sexual happiness.  The state embraced it, through a series of historical compromises coordinated its regulation with the Church, and saw it as an important responsibility of civil government: Marriage, family, and society formed a closed set of values.  Divorce was barely tolerated.  Church and state intersected in the bridal chamber.  The act of marriage presupposed a choice whose literal embodiment was the marriage contract.  It dis not matter whether the contract was florid or plain, spoken by a magistrate or sealed with a bishop’s ring,   It was understood that the state did not confer rights on “marriage,”  did not broker the contract.   In medieval theology from about the ninth century this was reflected in the already ancient idea that the ministers of the sacrament of matrimony were the man and the woman, and that the priest was merely the witness to an event performed by them. Neither church nor state legitimated the choice, sanctioned the decision, decreed how many offspring the couple should have.  While the opponents of gay marriage as well as advocates of the practice spend a lot of time talking about the Bible, they will find no formula for marriage anywhere in the Bible.

The analogy with civil rights also fails on categorical grounds. Black/white, man/woman and gay/straight have been forced on the political consciousness as terms specific to a category of marginalized groups who have suffered discrimination and intolerance.  The modern field of gender studies has succeeded in calling into question the “normative” distinction between male and female, which in turn has been used by some proponents of gay marriage to support their case. (What does it mean to say the marriage is the union of “a man and a woman” if both are shades of  biological gray?) But normative or not, the distinction remains central to discussion and definition.  To say that gender and sexuality are different things and that gender in particular is “socially constructed” is not prima facie a defense of gay marriage.

I’d  be the first to say that history should not bind us to the past.  And perhaps I am guilty of the same thing that advocates of gay marriage are doing when they reject civil unions as second-class marriages.  We are both making marriage a prize, something greater than the sum of its partners.

It is part of the flow of postmodernity that why not questions are asked before why questions.  But the question Why not a gay soldier or Why not a woman admiral or a Black president are categorically different from the question Why not gay marriage.  This is so because marriage is not a splicing of DNA but a fundamentally symbolic arrangement characterized by the potential for new life.  That is not a normative statement but a description of its symbolic weight. There are good reasons for lifelong unions between two people of the same sex, but the symbolism of marriage is not the best way to express those reasons.

Finally, consider this:   there is no “right” for heterosexual persons to marry.  The state assumes but does not confer such a right, and even the word “right” in this case would have to be translated by the old Latin phrase “jus naturale”—something rooted in a natural condition, rather than in “jus” or a law of marriage that can be extended as the state chooses. –Not to be facetious, but if it is within the state’s power to extend marriage to same-sex couples, then there should be no reason for the state not to extend it to children, to polygamists, and sisters and brothers.  Surely the happiness and fairness arguments would not prevail in such cases; but without a definition that materially restricts such argument, what reasons can the state employ to deny marriage to such persons?  I would not be persuaded by an argument that began, “Well, gays and lesbians would also oppose the marriage of minors, siblings, polygamists, sexual adventurers.” It would have no more weight than polygamists who oppose the right of gay couples to wed.

Heterosexual marriage was rooted in the natural law arguments of Stoics like Musonius and Epictetus long before Christianity came on the scene.  In fact, it took a long time for the Christian church to rediscover them.  But it is incorrect to think that the Christian or Jewish or Islamic traditions have been the primary brake on the train that is now taking us in a new and experimental direction.  The union of opposites was a matter for philosophical discussion in antiquity, and frankly was a more edifying discussion than we are getting today.