Our friends at National Review have presented a strong defense of traditional marriage:
What the institution and policy of marriage aims to regulate is sex, not love or commitment. These days, marriage regulates sex (to the extent it does regulate it) in a wholly non-coercive manner, sex outside of marriage no longer being a crime.
Marriage exists, in other words, to solve a problem that arises from sex between men and women but not from sex between partners of the same gender: what to do about its generativity. It has always been the union of a man and a woman (even in polygamous marriages in which a spouse has a marriage with each of two or more persons of the opposite sex) for the same reason that there are two sexes: It takes one of each type in our species to perform the act that produces children. That does not mean that marriage is worthwhile only insofar as it yields children. (The law has never taken that view.) But the institution is oriented toward child-rearing. (The law has taken exactly that view.) What a healthy marriage culture does is encourage adults to arrange their lives so that as many children as possible are raised and nurtured by their biological parents in a common household.
September 13th, 2010 | 11:24 am
Finally! An editorial-length treatment that identifies both the core meaning of the institution, and the incoherence of common SSM rhetoric. Excellent job, NRO! Insightful and succinct.
September 13th, 2010 | 11:47 am
Interesting article. Well written, not hysterical and about as persuasive as a 19th century Papal encyclical.
If that is the best the opponents of SSM can do, it would be wise to give up now and cut their losses.
September 13th, 2010 | 3:23 pm
If we are talking about changing the law, it would be a good idea to examine what actually is the distinctive feature of marriage in our present law.
The great French jurist and author of the leading commentary on the Code Civil, le doyen Jean Carbonnier did raise the question: “What is the state’s interest in marriage? Why does marriage exist, as a legal institution What is the unique legal rôle of marriage?”
Carbonnier’s analysis had to address the differences between the two legal régimes of marriage on the one hand and civil unions (PACS) on the other (as well as unregulated cohabitation) and to extract a principle from them.
His conclusion: « le cœur du mariage, ce n’est pas le couple, c’est la présomption de paternité » [“The heart of marriage is not the couple, but the presumption of paternity.”]
In other words, the institution of marriage entails consequences with respect to filiation that the other forms of union do not. Moreover, this leading jurist could find no other significant difference at all, in the laws governing cohabitation and civil unions on the one hand and marriage on the other, that does not logically derive from this presumption and no-one, to my knowledge, has been able to suggest an alternative reading of the legal texts themselves.
It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that Carbonnier’s views are either the result of religious convictions or an attempt to import them into his interpretation of the Code.
Significantly, in both Belgium and the Netherlands, when SSM was introduced, the principle of filiation was expressly limited to opposite-sex couples; in other words, the name was conceded, but without its legal substance.
September 13th, 2010 | 3:29 pm
The article claims (a) marriage is special, and (b) the legal benefits of marriage are overstated. It also notes many other arrangements (e.g. a grandmother and single mother jointly raising children) that wouldn’t get such benefits either with same-sex marriage.
On the other hand, I didn’t see a solid case against civil unions or other arrangements that might even benefit grandmothers and single mothers, too.
But Michigan’s ‘defense of marriage’ amendment specifically bans them, too. To the extent that it’s become an all-or-nothing battle – ‘same-sex marriage or bust’ – the defenders of marriage have to accept some blame.
September 13th, 2010 | 9:24 pm
The most persuasive argument for marriage is that God created it! Enough said. Anything else said is superfluous.
September 13th, 2010 | 9:25 pm
As good as this article is, it still fails to confront the fundamental reason why same-sex marriage should not be supported — homosexual intercourse is a disorder, and society should discourage it, mostly for the sake of those who are burdened with same-sex attractions.
It is a matter of biology that the sexes are designed to be complementary. Sexual intercourse is a natural and healthy activity for a man and a woman. However, between two persons of the same sex it is nothing of the sort. In particular, as usually practiced between two males, it is injurious. Long before the first case of AIDS ever occured there was (and still is) Gay Bowel Syndrome, a condition that is a direct result of the fact that the rectum is not a safe or healthy substitute for the vagina. The rectum is much smaller, and the tissue is much softer. Tiny tears occur during homosexual intercourse, letting feces and semen into the bloodstream. Not surprisingly, homosexuals get sick at a much higher rate than do heterosexuals.
Regardless of how often people may engage in sexual intercourse without desiring children, the fact of the matter is that procreation is the biological purpose of sexual intercourse. The sex organs are designed to perform this function, just as every other part of our bodies is designed to perform a specific function. However, the sex organs are unique in that they are designed to work with the sex organs of the opposite sex, and only work properly in heterosexual intercourse. In contrast, homosexual intercourse makes no more sense than sticking food in your ear for nourishment. No matter how good it may feel, it doesn’t work, and your hearing will probably suffer as a result.
Please don’t take offense at the preceding comparison. None of this is intended (or should be construed) as being unsympathetic to the very real attraction that homosexuals feel for each other. The attraction is not by choice. But much like an alcoholic or an anorexic, it is a compulsion that has dire consequences if the behavior is not resisted. Homosexuals need our love and support. The attraction can be resisted, and even reduced or eliminated over time, but that will never happen unless we first understand the truth — homosexuality is a disorder.
September 13th, 2010 | 11:32 pm
My own theory? That, at heart, traditionalist Christians who consider sex and procreation inextricably linked oppose SSM for the same reason that pro-abortion “pro-choicers” are wary of laws that allow (willingly) pregnant women to sue for tortious injury or death to their (wanted) unborn children.
Ie, in both cases, while the proposed new law doesn’t itself directly coerce them to do something they believe wrong (endorse homosexuality, refuse a woman an abortion on demand), it does…
(a) publicly symbolise a clear shift in the law’s “policy” on an issue,
which
(b) in turn, may soften up public opinion for exactly those coercive legal restrictions in future (Roe v Wade overturned, religious exemptions from non-discrimination-on-basis-of-sexual-orientation laws repealed).
“After all,” a lot of swinging voters will say, “if [discrimination against gays is illegal in every other sphere/ unborn children are recognised as persons with legal rights when their mother deems them 'wanted'], why do we tolerate this lacuna of inconsistency remaining in our laws?”
In both cases, the opponents of SSM and of foetal-injury laws appear, and often realise that they appear, to Jo[e] Public as sour ideologues who are denying “victims of historic prejudice” a legal right [of gays to marry, of pregnant women to seek damages for their loss] for the sake of an abstract principle that does not seem under any immediate threat.
September 14th, 2010 | 12:45 am
How many writers at NRO have expressed support for or indifference to SSM? Ponnuru, Goldberg and a few others, right?
To what extent is this editorial a fig leaf for a magazine that isn’t unified on the topic, and to what extent am I simply asking unfair questions?
MikeD, chances are many in the conservative movement are themselves partisans of unnatural vice, but of the “heterosexual” kind. There’s little reason for them to get too specific about sexual ethics.
On a related note, already conservative institutions are mostly banned. If NRO fired someone for indulging in homosexual acts, I’m pretty sure they could be sued for discrimination. This has an effect on the depth of opposition they can voice, even if they are willing.
The institutions aren’t ours anymore, and as soon as we realize that we’ll stop relying on false friends who will turn on us. Then we can start forming more reliable alliances.
September 14th, 2010 | 6:54 am
I happen to agree with William L Harnist, but, alas, I believe that his argument is no basis for legislation in a secular republic that “neither recognises, salaries or subsidises any religion.”
Mike D, too, may well be right, but “volenti non fit injuria,” and the law does nothing to discourage such practices between same-sex or opposite-sex couples, in or out of marriage, so I fail to see its relevance to the issue of SSM
Rod Blain is quite right about many of the arguments used against SSM. But the existence of bad arguments does not mean there are no good ones.
We are talking about the legal institution of marriage. Given that unregulated cohabitation and civil unions are open to all, regardless of gender, what is it that sets marriage apart and makes SSM an absurdity, in the strict sense of the word (self-contradictory)? It would help, if the answer is illustrated by an actual citation from the Code itself. I apologize for not doing so, in my earlier post, but I lack the knowledge of the state laws of the US to produce even a sample.
To take a European example, the European Court of Human Rights has allowed for differential treatment on the grounds of sex, ““where there is an objective and reasonable justification in pursuing a legitimate aim in a democratic society and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised,” reasoning that would probably commend itself to American courts.
On the basis of this, the French courts, endorsing the view of jurists like le doyen Carbonnier and Irène Théry that the principle legal consequence of marriage is the “presumtion of filiation” (contained in Article 312 of the Code Civil: « L’enfant conçu ou né pendant le mariage a pour père le mari.» “The infant conceived or born during the marriage has for father the husband “) have ruled ((Cour d’appel de Bordeaux, 19 avril 2005) in favour of the law limiting marriage to a man and a woman that its “specific and non-discriminatory character was the result of the fact that nature had limited potential fertility to couples of different sexes… Clearly, same-sex couples whom nature had not made potentially fertile were consequently not concerned by the institution of marriage, (ne sont en conséquence pas concernés par cette institution). This was differential legal treatment because their situation was not analogous.”
Here we have a clear, simple, secular argument: (1) Mandatory civil marriage, makes the institution a pillar of the secular republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation. (4) Same-sex couples, “ne sont en conséquence pas concernés par cette institution” – It has no relevence to them.
September 14th, 2010 | 7:50 am
Mike –
Leaving aside the fact that we allow people to engage in all sorts of unhealthy activities in the name of freedom…
…I’d like to point out that the number of documented cases of sexual HIV transmission between women is in the single digits. And the practices of male homosexuals you allude to are – allegedly, at least, I have no way to know for sure – not universal.
And, if I may note, a fair number of heterosexuals engage in such activities, too. Just to be clear – should “society” discourage them as well? If so… how, exactly? Do you think Lawrence v. Texas was decided wrongly?
September 14th, 2010 | 12:11 pm
If anything were needed to reinforce the point I tried to make in my previous post, it is Ray Inglis’s response to Mike D’s assertion.
Neither have any bearing on the issue of “Traditional” (republican) marriage vs Same-Sex marriage, one way or the other, given the existence of right to unregulating cohabitation and Civil Unions for couples of both sexes.
September 14th, 2010 | 5:29 pm
Um, Michael – If you look above, in the fourth comment to this article, I made the point that civil unions were specifically disallowed in Michigan. So the “existence” of that right is, er… not a “given”.
http://volokh.com/posts/1210188671.shtml
I agree that a legal marriage only having the “presumption of paternity” factor, and then civil unions with the other rights that have accreted onto legal marriage, would be a workable compromise. However, it would appear that there are a number of people from both sides of the issue who are not interested in compromise…
September 14th, 2010 | 11:35 pm
The idea that civil unions represent a compromise between a “traditional” role for marriage and SSM is a canard. The notion is advanced on the premise that marriage entails a set of attributes/circumstances desirable to the covenanting parties – be they specific privileges, personal satisfactions, or social status/recognition. But these benefits – whatever they may be – are culturally-defined responses, within a social institution of marriage, to the social commitments being made by the marrying couple. Somewhat crudely put, they are not what marriage is “about,” but what marriage is deemed as being “worth” in a given society. More crudely put, they are a kind of payment for services rendered to the community, and are therefore usurped when claimed in the absence of that marital service rendered to the community – which is the establishment and maintenance of a stable unit (family) ordered toward the procreation and nurturing of the next generation (and, concomitantly, the well-being of women).
In other words, societies confer benefits upon marriages because marriage confers benefits upon society. The idea is to encourage and reward marriage! Civil unions as non-marital recipients of benefits expressly intended for marriages is a transparently obscene idea. Civil unions serve no constructive purpose in society at all, as far as I can see. If a marital benefit is defined as such justifiably, civil unions cannot justly make any claim to it! If some other current marital privilege cannot be reasonably restricted to the sphere of marriage, fine – then it should be open to people freely, regardless of relational status, without the need for any kind of legally reductionist pseudo-marriage construction. Such a construction not only represents an Orwellian attempt at deflecting attention from hostile political action by renaming it, it also usurps the goods of society without providing society’s reciprocal good; it is dishonest and corrupt.
If marriage is good for society, it is not because it makes people feel good about themselves, but because it “turns the hearts of fathers to their children, and the hearts of children to their fathers” (Mal 4:6).
September 15th, 2010 | 2:59 am
Ray Ingles – I take your point that civil unions are not available everywhere and that they differ in their incidents from one jurisdiction to another.
Now, where they exist, the jurist must examine the differences between civil unions and marriage, in order to discover what is unique about marriage – What it is that distinguishes marriage from civil unions and from unregulated cohabitation, too.
Where they do not exist, the task is harder, for the jurist then has to analyse what is the defining characteristic of marriage and what are merely incidents, that can and do vary between differnt legal régimes.
I would still contend that it is precisely the “presumption of paternity,” which has been part of civil marriage, since its inception in 1791, that is of the essence of the institution. This is its legal function: to make paternity clear, certain and incontestible. To date, no better, simpler, less intrusive means have been found for ensuring, as far as possible, that the legal, biological and social realities of parenthood coincide. And that is no small thing.
Let me stress that I have been talking about civil, republican marriage: what happens in front of the mayor, not what happens afterwards, in front of the priest
September 15th, 2010 | 11:44 am
Which, you state, is ordered toward the “nurturing of the next generation”. If other people are doing the nurturing, should they not be encouraged and rewarded for doing so?
Well, we’ve already established that some things transparent to you aren’t to me, and vice versa.
Unfortunately, other arrangements like living wills and medical-care proxies aren’t always enough:
http://www.nytimes.com/2009/05/19/health/19well.html?_r=2
http://thelpkids.com/2010/08/27/the-latest-on-the-proposed-regs-by-lambda-legal/
September 15th, 2010 | 8:57 pm
No. I said it is ordered toward “the procreation and nurturing of the next generation”. You dropped the primary term – nice try, though. Marriage is (primarily) the social institution of well-ordered fatherhood.
What kind of reward? Free lollipops? You are equivocating by having the vague term “reward” stand in for the matter at issue, which is the set of goods with which a society privileges the institution of marriage. So, if society privileges marriage in order to encourage it, specifically because of the benefit to society of the marital home as the locus of procreation (i.e. sex), should society likewise “encourage and reward” contradictory behaviors? Ummmm…No. That would seem confused at best, if not outright insane.
Indeed.
Just because X is broken doesn’t give anyone the right to break Y in compensation. Benefits of marriage that are appropriately so limited are appropriately so limited. Those that are not appropriately so limited should not be so limited. This is not complicated, and it neither requires nor justifies the establishment of legal fictions like pseudo-marriages to ameliorate. Honest policy debate is all well and good, but Orwellian subterfuges like “gay marriage” and “civil union” are nothing but reprehensible obfuscations.
September 15th, 2010 | 10:46 pm
I left off the ‘procreation’ part because ‘nurturing’ is a rather more substantial investment of time and resources than the ‘procreation’ part, particularly for fathers.
By, y’know, a few orders of magnitude.
…in order to, in the model you’re advocating, help people care for and raise “the next generation”. Since that care is by far the greater investment of resources compared to the procreation, that nurturing is by far the most critical “behavior” to encourage, it seems to me the fact of nurturing is paramount and the procreation relatively incidental.
I’m not arguing that procreation is negligible or insignificant, by the way. Michael’s pointed out the importance of clear presumption of paternity. And discouraging casual or unthinking procreation makes sense. (We’ve already established it, but I should probably again emphasize that I don’t find abortion to be a sensible means to that.)
And this here is what I never seen a good case for. Reducing the burdens of unwed motherhood – though a good and necessary thing – did have the effect of more unwed mothers. But reducing barriers to marriage – allowing more marriages – will lead to less marriage?
How will heterosexual marriage be damaged by allowing same-sex marriage? How will my marriage be damaged?
September 16th, 2010 | 2:50 am
Ray Ingles – You appear to accept my point about the importance of the presumption of paternity that marriage provides.
Now my contention is that, in purely legal terms, that is the purposeof marriage and the only thing that sets it apart from civil unions and unregulated cohabitation.
So what is the point of extending marriage to cases in which this presumption is meaningless?
September 16th, 2010 | 11:18 am
Michael – I don’t actually think the State should be in the marriage business. From a legal point of view, a few forms of civil union should be offered. If people want to solemnize a marriage in a church (and note that there are churches that will solemnize same-sex marriages), they could.
If legal options for the other benefits of marriage were available, then talking about same-sex marriage wouldn’t make much difference. That’s not the case – particularly in Michigan (and Virginia).
But let’s assume the legal landscape were altered to make civil unions a fully viable alternative. Then extending the term ‘marriage’ to homosexual or other relationships would indeed be pretty pointless. That does not mean I agree that doing so would weaken heterosexual marriages. I still want to see that case made.
I’m married with four kids. If same-sex marriage were legalized tomorrow, how would my marriage suffer? Or, if it had been legal back when we were getting married, how would it have disincentivized me from marrying my fiancée?
September 16th, 2010 | 2:14 pm
Ray Ingles
No-one will deny that the state has a clear interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and to the orderly succession to property. So, to expect the state to opt out of the marriage business is fanciful.
How would SSM affect opposite-sex couples? Well, at the moment, most European countries approach questions of filiation, adoption and assisted reproduction as a coherent whole; it also affects questions of succession, as freedom of testation tends to be rather limited. That is why Carbonnier cautioned that we should touch the Civil Code « qu’en tremblant » – with trembling fingers.
It is worth noting that the Netherlands allows same-sex couples only to adopt its own nationals, in order to comply with its reading of the Hague Convention on International Adoptions. France, which does not, allows assisted reproduction only in the case of a “pathological condition.” The ramifications are endless and largely unforeseeable.
September 16th, 2010 | 5:56 pm
Michael –
Absolutely. And marriage has been used as a tool to ensure that for a long time – the mother’s husband was legally the father of children born during the marriage, very nearly regardless of adultery or whatever.
Of course, now we have DNA tests which work very nearly perfectly – except I suppose in the case of identical twins. The law hasn’t caught up to this new circumstance, which has led to cases where a man can prove that he is not the biological father of a child his wife bore, but he is still legally obligated to provide for the child until majority… and the actual father isn’t. It almost incentivizes adultery…
I’m, er, still wondering after your answer. You listed several circumstances that could make for complicated legal situations for same-sex couples. Unfortunately… none of them obtain to opposite-sex spouses, where there’s plenty of settled law.
So I’m still at a loss to understand how I’d be at a loss if same-sex marriage were legalized. Can you provide a more relevant example? I’m a heterosexual male married to a heterosexual female, and we have four children. How would – or, to give you maximum room to work, might – the legalization of same-sex marriage affect my wife and/or I negatively?
September 17th, 2010 | 3:13 am
Ray
You give a very good example yourself: given same-sex marriage, would we be justified in retaining adultery as an actionable delict, the husband’s remedy in the case you postulate? Or do we weaken the presumption of filiation?
Again, the adoption laws of most European countries now distinguish between married and unmarried couples (which belongs to the public realm) but refuses to consider sexual orientation (which belongs tot he private realm) Will this change with same-sex marriage? Consider also the questions around assisted reproduction: will this limited resource be made available to those where neither party to a marriage suffers from a pathological condition, which will be the case for most same-sex couples? Will an increased demand for surrogacy from same-sex couples be changed, by modifying the article of the Civil Code that ““only things in trade [which human beings, currently, are not] can be the subject of an agreement” ? Will the succession rights of ascendants and siblings, in the case of a married person who dies childless be reduced to take account of those marriages that are, by their nature, childless? What will be the succession rights of a child of one party, born during the marriage be to the estate of the other?
Over and above these, we should be aware of the law of unintended consequences that will only manifestt hemselves over time.
September 17th, 2010 | 11:54 am
No, given DNA tests, the presumption of filiation can stand, but be modified to allow objections on the basis of actual proof excluding a father as the parent. That has nothing to do with same-sex marriage.
I’m not following you why adultery would no longer be actionable if same-sex marriages were allowed. Please elaborate the chain of logic involved. Explain as you would to a child, because I’m just not seeing it.
Um… why would it? Again, I’m not being obstreperous, I’m just not following why this would be an issue… you either have a married couple that wants to adopt, or you don’t, right?
Well, in the U.S. at least, that’s more a question about who can afford to pay for it, than that people have a ‘right’ to it. That may differ in Europe…
Well, that’s pretty well sorted out – we can handle the inheritance rights of both biological children and adopted children within the legal framework we have now. The issues may conceivably be more frequent with same-sex marriage, but their basic nature doesn’t change.
With apologies, this comes across as, “I can’t think of any specific problems, but you can’t prove there won’t be some unspecified terrible consequence.”
September 18th, 2010 | 6:44 am
Part of the raison d’être of the delict of adultery is deterrent; to prevent the imposition of spurious issue. Also, the presumption of filiation loses much of its value, unless it is rendered incontestable by prescription within a very short period of time. Hence my question.
On the adoption question, there is very little evidence of the effects of adoption by a same-sex couple, neither of whom is biologically related to the child. Most research conflates such adoptions with the case where one of the parties is the child’s biological parent. A body of opinion exists (particularly in France) that placing an older, abandoned child with a “non-standard” family can exacerbate the stress surrounding adoption. Will a court be able to take such factors into account in granting a decree?
Regarding assisted reproduction, the law of most European countries imposes severe criminal and professional sanctions for breach of the current guidelines. Any pretended sale of human genetic material is, of course, void, for this is not a “thing in trade” and the payment can be recovered, under the condictio indebiti.
At the moment, the rights of a childless surviving spouse are less than those of a surviving spouse with children. The law reserves a portion of the estate for the ascendants, if alive, or for the brothers and sisters. This is plainly based on a pro-natalist view of marriage, as a mechanism for transmitting property down the generations. Can it survive the creation of intrinsically childless marriages?
Already we have seen a great deal of litigation surrounding surrogacy, in more than one European country, particularly around the question of whether the “genetrix” (the provider of the egg) or the “gestatrix” (the woman who carried the child to term) is the mother.
I agree that these are incidents of marriage that do not affect its essence. My point is that these incidents have been tailored to opposite-sex marriage and any reforms are less likely to be so well adapted. As leading jurists, such as Martin and Irène Théry have pointed out, over the debate around PACS:
“In this process, family associations – the traditional, legitimized and official partners of the State and Parliament on family issues – were marginalized… In a way, the debate on the PACS contributed to a visible and explicit decline of the legitimacy of the family associations as representatives of the family interests. Their positions appear to be too traditional and conservative to be acceptable to public opinion. With the debate on the PACS, a new and increasingly recognized interest group appeared, the “homosexual community,” albeit that that hypothetical community is much more fragmented than it is generally represented to be (in terms of gender, generations and social stratification, with important consequences in terms of lifestyle and mobilization)”
September 18th, 2010 | 5:46 pm
Ray, you continue to miss the point here, and this time you’ve dropped the concept of “generation” from the equation to help accomplish your confusion. I might have more succinctly observed that marriage is ordered toward progeny. Things like “time and resources” are only subordinately related to either the essence or the purpose of marriage.
You would divide procreation from nurturing as if children were the products of a manufacturing process in which adults play transferable functional roles. What I’m trying to tell you is that such a vision of the human race, with this disconnect between sex and fatherhood, bearing likenesses to anti-family utopianism since Plato, is a modernist smokescreen that barely covers over a bond-less social chaos of utilitarian human degradation worthy of a Hobbesian “state of nature.”
Marriage is precisely that social construction which has forever stood against such chaos, by constraining sex so as to create the social cohesion – and stability – with which the term progeny is pregnant, which in turn has produced the family, the tribe, the nation, and ultimately the supranational cohesion of civilizations. Marriage – the constraining of sex to the ends of the family – is the real “social contract” that stands at the dawn of civilization. “Extending” marriage to incorporate everything it has always stood against is an absurdity that renders the meaning of marriage incomprehensible. In other words, it removes marriage as an obstacle to procreational anarchy (and Hobbesian chaos) by “making” procreational anarchy “part of” marriage. What could go wrong?
First of all, I am not advocating any model; I am trying to describe what the institution of marriage is – and has been throughout the recorded and pre-recorded history of the human race. I am being neither proscriptive nor prescriptive, but descriptive. This requires no serious faculty beyond observation. I utterly reject the notion that marriage can be “modeled.” Anything that we can say about how marriage should be culturally expressed (and empowered) is entirely dependent upon an accurate and honest understanding of what marriage first is.
Secondly,”help[ing] people care for and raise the next generation” (which, btw, is not at all my view of the purpose of marriage) betrays a very modern, welfare-state-informed prejudice in the understanding of this ancient – indeed, primordial – institution. Marriage does not require a bureaucracy to pass out certificates and distribute “benefits” or helps. It does not require a state, or a legal code. Nor does it require a religious bureaucracy. It does require legitimate authority in society, even as it itself provides the foundation for a social authority outside of violence and raw power. It would be more accurate (if somewhat crude) to say that marriage forces people to care for and raise the next generation, because marriage is not part of some grand entitlement program; it is the humanization, familiarization, and civilization of sex.
More marriages? Why are you begging the question? You know very well that the “conservative” premise is that “gay marriage” is not marriage at all! You have to show that something is possible before you can assert that it is admissible. Why don’t you address the problem posed, instead of trying to move the goalposts (which is exactly what begging the question is)? Would further “barriers to marriage” be reduced if men were declared legally free to “marry” horses or rubber dolls? This is nonsense.
If you want to assert that this new thing is actually the old thing, the burden of proof should be yours: go ahead and prove it intelligently. Good luck. You would need to begin by defining what is unique to marriage – all marriage: not just legal constructions, not just fertile marriages, not just marriage in modern contexts, not just in Western contexts, but what is and has been common to this unique institution in every civilized and barbaric society since the dawn of mankind.
Sorry, but first of all: it’s not about you. Secondly, your marriage is not marriage anymore than your paycheck is the economy.
Ignoring the logical inanities of the redundant term “heterosexual marriage,” and the Alice in Wonderland perspective necessary to grasp the idea of “allowing same-sex marriage,” I must confess that it is my conviction that people who ask this question are trying very hard not to answer it. The use of the overblown word “damaged” instead of something more literally coherent, such as “undermined,” betrays the need to try to make the possibility appear absurd on its face, so that people might not look any deeper. Likewise, the use of the determinative “will” instead of the more speculative “could” seems like an attempt to discourage thoughtful consideration, demanding instead a predictive certainty that, given the radical nature of the social experiment, its unprecedentedness in human history, the subtlety and complexity of the social order, the unpredictability of individuals, and the many competing variables of public life influencing the state of marriage for good and (mostly these days) for ill, few would feel comfortable enumerating as a kind of bullet list of “damage points.”
This does not mean the question is unanswerable – far from it – it simply means that the unknown is unknown. Will “gay marriage” introduce some brand new social pathology that we’ve never seen before? Maybe, maybe not. But if it does, how would we know today what it will be when it appears? What justifies the assumption that it won’t?
So, what about other “damages?” I’m sorry, but it just seems beyond silly to have to point out that if the civilization-creating (and sustaining) institution of marriage is allowed to be reduced in its cultural understanding to a state-sanctioned personal (not social!) relationship of a self-centered, “friends with benefits” nature, destroying by ideological trump the governing and conditioning power of the institution as it has always stood, then – at a minimum – all the pathologies commonly associated with a weak marriage institution (fornication, adultery, divorce, abortion, incest, child abuse, spousal abuse, child abandonment, spousal abandonment, pornography and the sexual degradation of women, prostitution, the sexualization of children, homosexuality, drug abuse, mental illness, criminality, gangsterism, poverty, ignorance … need I go on?) will boil over, and I see no good reason to think that all hell will not break loose in new and unexpected ways.
But really, your question is not really a question at all, but an inverted assertion from ignorance that “nothing could go wrong.” It is essentially a challenge to prove that assertion wrong, an assertion that merely states “I can’t (won’t!) think of anything that could go wrong; therefore nothing will go wrong.”
But perhaps I’m wrong, and unfairly refusing you the benefit of the doubt. Well, I’m prepared to be wrong, and hope I am. But if I am, that would mean you have already given careful consideration to the question of what could go wrong, have identified at least a reasonable subset of the possible concerns an intelligent and just man might have, and have resolved them in an honest and sufficiently rigorous manner. Please feel free to share your refutations or resolutions of the possible harms you have determined could possibly come to pass by this experimental redefining of the fundamental social institution of civilization.
September 19th, 2010 | 12:33 am
John Gillis –
Okay, hold up. I’ve said that I don’t understand how allowing same-sex marriages would damage – or, if you like, undermine – heterosexual marriage – or, if you like, currently-recognized marriages. I ask you to explain how it would do so.
And, instead of answering this question, you require that I answer it? Talk about “shifting goalposts”! I have to admit, I’m impressed in spite of myself…
Why can’t you assume I’m stupid instead of malicious, and spell things out for me? As I asked Michael, “Explain as you would to a child.”
September 19th, 2010 | 12:32 pm
September 20th, 2010 | 3:03 am
Ray Ingles
You are quite right – How do we re-think adultery as a delict, in the case of SSM?
In the case of adoption, most European countries have adopted the precautionary principle, as does the Hague Convention of 1993 on International Adoption (to which the USA is a signatory). There is an absence of evidence, because few countires have tried the experiment of placing children for adoption with same-sex couples, neither of whom is related to the child – almost all the evidence concerns adoption by a natural parent and their same-sex companion.
My contention is that, given that SSM, filiation, adoption and assisted reproduction will have to be dealt with as a package, the likely ramifications are considerable and that, as all of these involve the welfare of a child, whose interest must, in all cases be paramount (at least, according to the UN Convention on the Rights of the Child), we are justified in applying the precautionary principle.
September 20th, 2010 | 9:22 am
Michael – you miss my point. If – as you imply – same-sex activity isn’t legally relevant, then if a husband cheats on his wife with another man, the woman could not sue for divorce on grounds of adultery, right? Her husband didn’t do anything relevant to the marriage, right?
On the other hand, if you think the husband’s activity in this case is actionable (and I’d really like you to state explicit?ly if you think it is or is not)
September 20th, 2010 | 9:25 am
(Submit button’s too close to the text box for my small screen)
…then that activity would also be actionable in a same-sex marriage. I don’t see how it could be any other way – either same-sex activity legally counts, or it doesn’t. How would you justify some other double-standard?
September 20th, 2010 | 7:54 pm
I did answer it – in more words than a combox should have to suffer – and then I asked you to – in turn – provide your own collected thoughts on that which has to be taken by any serious person as an enormously important question in the face of this radical proposal – not a question to be deployed as a brush-off. This seems perfectly reasonable to me. I trust you are not reckless enough to promote such a radical change to such a core institution of society without having given due consideration to the possible consequences…
September 21st, 2010 | 2:38 am
Ray Ingles
You are confusing grounds for divorce with an action available against a third party for delict. The husband is given this remedy, because of the risk of a spurious issue and a wife because of the potential finacial liability of her husband to the defender’s issue.
September 21st, 2010 | 8:49 pm
But… we have separation of church and state in the U.S.! The cultural understanding doesn’t necessarily change. Most churches won’t perform same-sex marriages (though some will), and will be able to condemn and cajole and cavil to their heart’s content. I don’t see why this isn’t a case of “render unto Caesar”.
As I said, I personally would want a disjoint setup – the state recognizes civil unions, period. Most marriages performed in church would ideally be automatically recognized as a legal relationship – just as they are now – though secular options would be available as well. Churches probably wouldn’t consider many of those legal relationships to be ‘marriages’, but if the people involved don’t belong to that church, it’s hardly an issue for them.
Several questions come to mind (if I’m allowed to ask). First off, where are you getting your data? Is this correlation or causation we’re talking about, and how do you know? (I’m particularly curious as to how you tie “ignorance” to a “weak marriage institution”…)
I’m also really curious about the causal link between ‘weak marriage institution’ and ‘homosexuality’. How is the latter supposed to flow from the former?
A few more minor points:
My words to Michael: “How would – or, to give you maximum room to work, might – the legalization of same-sex marriage affect my wife and/or I negatively?” I’m not ruling out speculative cases at all. Speaking of which:
I’m trying to ground this discussion in something concrete. Specific examples would help, and I volunteered myself. If you have a more relevant hypothetical, feel free to propose it.
And, finally:
But that’s never been my contention. I’m willing to go with the idea that it’s a new and different thing. My point is that I don’t see how allowing this new thing prohibits, undermines, or in any way affects the properties or availability of the old thing.
Personally, I don’t see homosexuality as being all that ‘catchy’. It’s got to have at least a very strong biological component. The vast majority of men will still be attracted to women and vice versa. Allowing those who are not so constituted another option is actually a good thing.
If it’s a choice, then I’m libertarian enough to stay out of the way, modulo “consenting adults” and all that, of course. If it’s genetic, and if it’s also a net disadvantage, then encouraging them to breed is the worst thing to do, it’ll pass on the genes that would otherwise weed themselves out. On the other hand, if it’s neutral or even a net positive for the population that contains that trait (see, e.g., sickle-cell anemia and malaria), then it’ll propagate itself, and getting in the way is likewise a bad idea.
No matter how you slice it, laws against homosexuality are bad. I’m more than happy to let things sort themselves out. Humans thinking they know best about traits is hubris.
September 21st, 2010 | 9:12 pm
Fair enough. You’ve still avoided my question, though – if a man cheats on his wife with another man, is there “an action available against a third party for delict”? Secondarily, if not on grounds of ‘spurious issue’ then on on what other grounds might action be pursued?
Or, legally, is it not a problem at all?
September 22nd, 2010 | 2:16 am
No, there currently is not; nor for physical intimacy with another woman, short of intercourse.
As Carbonnier showed, the delict is intimately connected with the presumption of paternity and its extention to the paramour of the adulterous husband is comparatively recent.
September 22nd, 2010 | 9:50 pm
Huh? The entire point and purpose of the “gay marriage” movement is to change the cultural understanding of what constitutes marriage! It evacuates the concept of its meaning, by imposing upon it a contradictory meaning dressed up in linguistic mimicry. It is conceptual identity theft, and you exhibit no interest in the matter of identity.
As far as I can see, your basic argument is that you don’t understand how this change really changes anything, and therefore you can’t even begin to conceive of its repercussions, so there must be nothing wrong with it.
You are simply not dealing with the problem – you deny it exists!
September 23rd, 2010 | 9:50 pm
Sure, that’s their purpose. But plenty of things today are legally allowed but socially sanctioned (e.g. flag burning). And people who don’t like gay marriage don’t have to hang with people who do. And they’ll be free to argue against or condemn people doing so, even if it’s legal.
No, I don’t see a major problem… so I’m asking people to explain what the problems are (or might be), and why. Read what I’ve written – I haven’t argued for same-sex marriage, I’ve argued (without much passion) for civil unions. I haven’t advanced an argument for same-sex marriage, I’ve asked what the arguments are against it. Since I do come from a libertarian-ish point of view, if something’s going to be prohibited – even if it’s something I personally don’t care much about – I want a good case as to why.
It’s taken this long to get to ‘what’ the problems are, and I still haven’t seen a whole lot in terms of ‘why’. So far, the case looks to be, “we can’t show there isn’t a problem, therefore we must not allow it”. If you could provide some data backing up your claims about a “weak marriage institution”, and explain (“as you would a child”) how same-sex marriage weakens the institution of marriage, then we’d be onto something.
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