"The framers of the constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses of liberty. They chose liberty." ~ Justice William O. Douglas
Who Defends Marriage?
One popular argument against same-sex marriages is a linguistic one: marriage, it is alleged, is by definition a relationship between a man and a woman, so whatever legal relation gay couples may wish to establish for themselves, it shouldn't be called marriage. Even if this argument were sound, it would prove less than many of its proponents would like; it wouldn't tell at all against what a concern for equal protection appears in any case to mandate: the establishment of a legal status for same-sex partnerships granting such partners rights equivalent to those of legal spouses. All it would prove is that this legal status should be called something other than 'marriage.' But how good is the linguistic argument? Not very, I think. By the logic of this argument, the First Amendment's term 'press' should not apply to photojournalism, its term 'religion' should not apply to Mormonism, and the Second Amendment's term 'arms' should not apply to Colt revolvers, because none of these existed at the time the Amendments were written. It is true that the term 'marriage' has traditionally been applied to heterosexual unions only (though often polygamous ones). But it is also true that the term 'marriage' has traditionally been applied exclusively to relationships in which the husband held legal authority over the wife ' relationships in which the wife was not only subordinated to her husband but actually absorbed into his legal identity. If we are going to appeal to traditional usage to deny that same-sex partnerships are genuine marriages, then by the same argument we will have to deny that relationships between legal equals can count as marriages. In the traditional meaning of 'marriage,' then, there are no married couples in the United States today. If instead we insist that relationships among legal equals can be marriages, then we have granted that marriage is an open-textured concept whose meaning is not limited to its historically given forms; in that case, same-sex marriage can no longer be ruled out by linguistic fiat. The question now becomes: what are the most important and relevant features of heterosexual marriage today, and do same-sex unions share those features? Religious conservatives will no doubt respond that the most important and relevant features of heterosexual marriage concern reproductive functions which homosexual unions necessarily cannot share. (Ironically, when discussing social issues, religious conservatives tend to display an odd enthusiasm for biological considerations over spiritual ones; I'm tempted to call them 'Creationists for Social Darwinism,' or perhaps 'Dualists for Reductive Materialism.') Now the institution of marriage may well owe its origin to biological factors; but as I have written elsewhere:
In biological terms, the family originates in the need to nurture offspring. . . . But the evolutionary process is resourceful. A trait that initially emerges to meet one need, may then be pressed into service to meet another. There are evolutionary advantages to maintaining a cooperative relationship among family members beyond the point needed to ensure the continuation of the species. And with the highest animals, not only biological evolution but cultural evolution can come into play (e.g., a cat who is raised to regard mice as playmates rather than prey may in turn raise a whole generation of peacenik cats). Among humans, the family still serves the original function of childrearing, but it has acquired a robust range of new functions as well, serving both the economic and the emotional needs of its members. The family has grown beyond its original biological basis, thus dramatically increasing the number of possible family structures. A parallel can be made to language. Presumably, language first evolved in order to convey information vital for survival, such as 'There's a sabretooth tiger behind that outcropping' or 'Don't eat those, they're the mushrooms that made me sick before.' And language still serves that function. But today language also serves a broad range of spiritual needs whose relation to physical survival is tenuous at best. To condemn (as many conservatives do) family relationships that are not for the purpose of childrearing is like condemning Shakespeare's Hamlet for not telling us where the sabretooth tiger is . . . . [H]uman beings have managed to make out of the sexual pair-bond something superior to what nature originally provided. . . . [T]he nature of marriage is not inherently determined by the particular form it takes in a given society. Marriage and the family are historical phenomena, and cannot be defined in separation from the way they develop over time.
What homosexuals seek from legal unions is in no fundamental way different from what heterosexuals seek from them. If goods are defined by the needs they serve, then 'marriage' is the appropriate name for such unions. In a recent column, Joseph Sobran updates the argument from tradition:
[T]he Pope can't change the nature of marriage. It existed, by necessity of human nature, long before Jesus or even Abraham. Every society has had some version of it, but none has ever seen fit to establish marriage between members of the same sex ' or more precisely, to call homosexual unions 'marriages.' This has nothing to do with mere disapproval of sodomy. Even societies that were indifferent to sodomy saw no reason to treat same-sex domestic partnerships as marriages. Why not? Because such unions don't produce children. Imagine a society in which homosexuality was considered normal and healthy, while heterosexuals were considered perverted. It would still be necessary to have heterosexual marriage as an institution, even if it was a sort of penal institution, for the sake of taking care of the children these 'perverts' produced . . . . Again, what society has ever seen any point in 'married' homosexuals? . . . If same-sex 'marriage' were anything but a sudden modern fad, we'd surely have heard of it before. But it was never even a fad; it was merely a contradiction in terms, not worth considering.
My replies to this argument are as follows:
First: it is not true that legally recognised same-sex unions are unknown in history. As John Boswell shows in his book Same-Sex Unions in Premodern Europe, they were common in Mr. Sobran's own tradition of medieval European Christianity.
Second: even if the historical claim were true, how would it matter? The conservative prejudice that nothing is worthwhile unless it is old is no sounder than the liberal prejudice that nothing is worthwhile unless it is new.
Third: why assume an essential connection between marriage and childrearing? If those who take this position were consistent, they would favour prohibiting marriage for infertile heterosexuals. By not doing so, they themselves in effect admit that marriage is about more than reproduction.
Fourth: even if there were an essential connection between marriage and childrearing, how would that privilege heterosexual unions over homosexual ones? Has Mr. Sobran never heard of adoption or artificial insemination?
As Ayn Rand first pointed out, the religious conservatives' position on sexuality is directed 'not against the gross, animal, physicalistic theories or uses of sex . . . but against the spiritual meaning of sex in man's life . . . . It is not directed against casual, mindless promiscuity, but against romantic love.' ('Of Living Death,' in The Voice of Reason) Confirming Rand's diagnosis, Mr. Sobran confesses in passing that he regards romantic love as 'extraneous' to marriage. In my judgment, those who hold this position should call themselves enemies of marriage rather than defenders of marriage. In the end, however, I'm happy to say that the issue between Mr. Sobran and myself is moot. For we both favour the abolition of the state. (See Mr. Sobran's article The Reluctant Anarchist.) Under Mr. Sobran's favoured political r'gime, and mine, the legal definition of marriage, like all legal issues, will be decided not by a monopolistic government but by private, co-territorial enterprises competing for customers. Within the same geographical area, some legal institutions will cater to socially conservative customers by offering only traditional heterosexual marriage contracts and advertising boldly 'We defend the family!' while other institutions will cater to socially liberal customers by offering a wider variety of marriage contracts and advertising with equal boldness 'We defend equality!' And the whole legal wrangle over marriage will be done with, forever. In the meantime, however, so long as governments do monopolise the definition of marriage, the political struggle must continue between the social liberals who seek to defend the spiritual meaning of marriage and the social conservatives who seek to debase marriage to a merely biological function. Let us not to the marriage of true minds admit impediments.