Michael Hannon offers a helpful interjection into the roiling same-sex marriage debate:
Think back to the embarrassing and obnoxious response your teacher used to give when a student would ask, “Can I go to the bathroom?” “I don’t know,” she would say, “Can you?” The child’s mistake lay in confusing “Can I?”—an interrogative dealing with possibility—with “May I?”—which pertains rather to permissibility. Instead of asking whether he was allowed to go to the bathroom, the confused pupil accidentally asked if he was capable of that feat at all. Yet childhood errors have a way of coming back to haunt us, and that is precisely what has happened in the debate over redefining marriage.
Olson, Boies, and their allies have systematically confused a debate about metaphysical possibility with one about political permissibility. They are arguing that our government ought to let same-sex couples marry, and they are convinced that their opponents are arguing over the same point, just on the other side of the issue.
But that is a gross mischaracterization of the disagreement. For our position is not that the government should refuse to let such couples marry, but rather that the government is utterly impotent with regard to this question. Our response to same-sex couples desirous of marriage is not “You may not,” but rather, “You cannot.” We do not seek to bar anyone from marriage; we just believe marriage is a union that is necessarily and by its very nature heterosexual. Maybe we are right, or maybe Olson and Boies are. But regardless, the question to be settled in this debate is not whether to bring a latent potency into actuality, but whether there is in fact any potency present in the first place.
Hannon also discusses Ted Olson and David Boies’ (unlikely) plan to win Scalia’s vote for same-sex marriage.
November 19th, 2012 | 12:16 pm
For if those of us who oppose the legal enshrinement of so-called “same-sex marriage” are correct, then the government can no more make same-sex couples married than it can make pi equal to three. In other words, no judicial or legislative fiat can make two men married if marriage is by its very nature heterosexual.
I can understand the philosophical argument—as made in What Is Marriage?—that “true” marriage is possible only between a man and a woman. What I don’t understand is the argument, even if the philosophical argument is correct, that government has no power to permit same-sex couples to enter into civil marriage. Has a serious argument been made that in the countries of Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain, South Africa, Sweden, and in the parts of Mexico and the United States where same-sex marriage is legal, the same-sex couples who have gone through a civil marriage ceremony aren’t civilly married? Are we to believe that all these countries and states enacted invalid laws? And who will invalidate them?
It is already the case that civil marriage in the United States in many ways does not conform to the definition of marriage in What Is Marriage. I hope someone will correct me if I am wrong, but I don’t believe the essay claims government can’t make laws opening civil marriage to same-sex couples. I believe the argument is that government shouldn’t.
I think, in a certain limited way, the law can declare pi equal to three, although I won’t go into detail about that here. But I would point out that someone missing for 7 or more years without a trace can be declared legally dead. The law can’t declare a living person to be dead, but the law can declare a person legally dead.
It seems to me the fact that eleven countries and parts of two others have indeed declared same-sex couples to be married is proof that it can be done. It has happened. It is a fact. What way is there to prove that the various governments involved could not do what in fact they have done?
November 19th, 2012 | 12:20 pm
If this were true, then you would have no objection to removing laws requiring that a marriage consist of one man and one woman. After all, what is impossible need not be legislated against.
November 19th, 2012 | 12:58 pm
I’m not sure how helpful Mr. Hannon’s interjection is likely to prove. Plenty of Christians no doubt believe that the state is, in fact, powerless to change the nature of marriage such that same sex marriages are *true* marriages.
But many of us also maintain that the state is actually just as powerless to dissolve real marriages. That has done nothing to stop the very real effects of widespread divorce in our society.
November 19th, 2012 | 1:18 pm
Given my experience with supposedly well-educated students, and with a lot of their teachers, I suspect the distinction between “may I?” and “can I?” has been lost among grade school teachers.
November 19th, 2012 | 1:46 pm
Confusion abounds. For the one side the issue is one of a marriage “ban”. For the other, the issue is definitional. That’s the heart of it.
Certainly, words can be redefined. That happens all the time. But what happens when the word “marriage” is redefined? In this case, the original definition essentially goes out of usage as far as the state is concerned. We are well along the road to this already, independent of SSM. Still, it’s one thing to think the cause is lost and another to call it a “civil right”. It’s as though there are those who think words continue their meaning no matter how they are stretched. That is simply not true.
Children and women bear the brunt of the ongoing definitional change. We are losing something that has long served a major purpose in human civilization and we have no idea what it is that will fill the vacuum.
November 19th, 2012 | 3:54 pm
But many of us also maintain that the state is actually just as powerless to dissolve real marriages.
Tom,
Great point. Many believe—and “the Bible says” quite clearly—that marriage cannot be dissolved and that divorce and “remarriage” is adultery. And yet civil law in the United States permits divorce (“no-fault divorce” in all 50 states) and “remarriage.” If marriage is a permanent union of one man and one woman, how can those who object that same-sex marriage is impossible recognize second, third, and fourth “marriages”? The state is doing something impossible by “marrying” people who are already married, even though they have had a civil “divorce.” Those who say same-sex marriage is a “legal fiction,” if they are Bible-believing Christians, would also have to say that civil divorce and remarriage are also “legal fictions.”
It seems to me, as I have said before, that if there is one teaching of Jesus that is not just crystal clear, but agreed even by historical-Jesus scholars (who may not attribute everything in the Gospels to Jesus himself) to be an authentic teaching of Jesus, it is the indissolubility of marriage.
November 19th, 2012 | 4:26 pm
Children and women bear the brunt of the ongoing definitional change.
Mike Melendez,
Actually, it seems to me that many women (and their children) suffer not because marriage is being “redefined,” but because they do not get married. In general, it is the more highly educated and more affluent who get married and stay married. Also in general, it is the more highly educated and more affluent (among others) who support same-sex marriage. Marriage is not faring poorly in general. It is faring poorly among certain segments of society.
I do not see how stopping the trend toward same-sex marriage is going to have any effect on the trend toward more out-of-wedlock births, more single-parent households, and so on.
How to reestablish marriage as the norm among the less educated and less affluent I don’t pretend to know (other than the obvious of doing our best to see that everyone has the opportunity for education, including higher education, and has good job opportunities). But It seems to me it does no good to “save” traditional marriage when the big problem is that large numbers of the population are simply choosing not to get married.
I simply don’t understand those who believe that same-sex marriage is some kind of significant threat to marriage itself. I think the reaction against same-sex marriage springs much more from moral disapproval and visceral negative reaction to the idea of people of the same gender engaging in sex acts than it does from a rational concern for the institution of marriage.
November 19th, 2012 | 9:59 pm
A very good insight quoted here, but what’s missing is the rather obvious leap of logic: What’s the big deal really?
Look at this passage again:
Yes marriage is in some measure mysterious. We all know marriages that should not have worked….the couple are complete opposites, they fight endlessly, yet they are together for decades and literally create a shared lifetime as one. We also know marraiges that were ‘perfect’ only to end a few years later with a trip to the lawyer. In both cases we and gov’t may have an opinion on whether these people ‘can’ marry (meaning is it possible for them to create a successful marriage), but ultimately the risk of undertaking the endeavor belongs to the couple. While I’m sure science has had some insights on these things, it still remains and probably will remain pretty unpredictable.
If you tell us that you know for a fact that same sex couples cannot achieve a real marriage, I’ll tell you that’s very useful knowledge. It’s also very useful to know that Geminis and Cancers can never produce successful marriages. Not your job or the gov’ts to tell either type that they may not do something the wrong way. If my Cancer-Gemini assertion is correct, then Cancer’s and Geminis will ignore my words of caution at their own risk and end up burning themselves should they insist. If it turns out that some of them form successful marriages, though, well then I’d simply be wrong. There’s a lot of freedom there. I don’t have to do anything to justify my silly assertion. If its true then its true, if its false then its false. You can bet all your life choices on the idea that I’m right….but I don’t ask you too and even if I did I couldn’t force you.
Everything changes, though, the moment I get up and declare that to ‘protect marriage’, the law must clearly forbid Cancers and Geminis from wedding each other. The moment I do that, I loose the ‘freedom’ to be loose with my beliefs. Now I can’t simply be mistaken or wrong about things, my beliefs are crushing others so I no long have the luxury of being able to make mistakes or be wrong. Now I must be willing to bet my life on my assertions because I am demanding that societies force others to be theirs on them!
Takes a pretty serious man or woman to take that stand. They had better be up to it. At least as far as marriage is concerned, I have no illusions about my quality to be willing to be that bold. Tell me, who here who advocates that the law oppose SSM formally is willing to assert such quality?
November 19th, 2012 | 10:20 pm
David
I can understand the philosophical argument—as made in What Is Marriage?—that “true” marriage is possible only between a man and a woman. What I don’t understand is the argument, even if the philosophical argument is correct, that government has no power to permit same-sex couples to enter into civil marriage.
Let me give you my philosophical take on this. The historian Niall Ferguson had a not too horrible book on civiliation and his definition was pretty good….he defined it as the largest unit of human interaction. Pretty good, with that one could talk sensibly about American Civilization, Western or Eastern Civilization….even the entire Earth as a human civiliation (or if you’re into sci-fi, galaxy wide civiliations etc.).
So what would be the opposite? The most intimate of human interactions, the closest humans could theoretically get to each other while still remaining distinct individuals? There’s the other side of the coin…the ‘micro’ to ‘macro’ if you will. Marriage. It is, though, a bit of a Platonic ideal….take the closest couple you know, and as close as they might be I’m sure it would be possible for them to be closer, while still remaining individuals. Marriage in that sense is like a circle, you can never draw a true circle as defined by HS geometry. But you can clearly see some circles are better than others. You are free to set an arbitrary line at which you’ll declear all the imperfect circle attempts within it to be ‘good enough circles’ and those beyond it to be ‘fake circles’, but you’re kidding yourself if you think that has anything to do with what a circle is or its nature.
So you may say it is physically impossible to draw a true circle with a pencil. You may be right, but if you say this and at the same time say you are ‘protecting the nature of circles’ or ‘preventing the redefining of circles’ you’re just being incoherent. If a circle is a real thing and that real thing cannot be achieved by some way of attempting it, then the circle doesn’t need your protection. To even assert you’re fighting for it is to really assert it doesn’t exist. It’s just a political definition that is controlled by whoever wins the most recent election.
Hyhybt
If this were true, then you would have no objection to removing laws requiring that a marriage consist of one man and one woman. After all, what is impossible need not be legislated against.
Except there are no such laws. We have a legal structure set up around two person marriage. There simply is no structure, though, for three or four person marriage. You are free to advocate setting up such a structure, but then you’re not arguing for access to something that already is there, you’re arguing for something to be created.
It’s a bit like saying the NFL should have the option for three or four teams to play each other at once in a game rather than just two teams. Could you sit down for a few hours and come up with a system for ‘four team football’? Probably. I could do the same. We’d both probably come up with totally different systems. If people really want four team football I’m sure the NFL will accommodate them, but it would have to do so by *choosing* some new system. It cannot simply ‘give access’ to four teams at once to its current game.
November 20th, 2012 | 3:14 am
Booton wrote
“We have a legal structure set up around two person marriage. There simply is no structure, though, for three or four person marriage.”
This is not a merely theoretical problem. When citizens of one country, say Algeria, enter into a marriage there that is actually or potentially polygamous and then come to settle in, say, France, where marriage is strictly monogamous, the courts have to consider whether the relationship between a man and the ladies living under his protection in a polygamous union is sufficiently analogous to the relationship of husband and wife, as described in the Code Civil, to make it just to apply the same rules to them. Otherwise, there is a real danger of the courts creating obligations, rather than enforcing them. The same question can arise in relation to succession to moveable and immoveable property, the owners, citizens of and domiciled in a foreign country, are in a polygamous union.
No jurist has suggested there is an easy answer to this.
The analogy with same-sex marriages is obvious enough.
November 20th, 2012 | 9:36 am
Michael PS
It would be helpful if you explored exactly why you think the analogy with SSM is obvious. I contend it isn’t.
It would be problematic if the legal systems of developed countries had explicitly male and female roles written into their marriage structure. For example, consider a culture where divorce may be requested by the male but only granted if the female consents. In this culture, SSM, would suffer the ‘NFL Problem’ I described above. If courts allowed two men to marry or two women then how would it handle a divorce case? Who has the right to request one and who has the right to veto? For over a century, though, the legal systems of developed countries have rejected the idea of male and female roles in marriage law making SSM quite easy to implement.
Now keep considering that alternative culture where the law has clear male-female roles. In that culture, an argument by polygamists that they should be accomodated would have more power. “How could a man marry more than one wife?” A judge would have an easy time answering that. In each women he married, the man would have the right to request divorce and the woman have the veto. This is how polygamy worked so easily in the Bible. Since a man ‘took’ a wife, polygamy was simply a man ‘taking’ more than one wife. It left no complex questions such as are the fellow wives ‘married to each other’ or do the other wives get a vote on whether or not to add a new wife to the mix etc.
Hence a French court has a difficult time when an Algerian man shows up with two wives and come court case erupts where its very important to decide just who is married to whom. Such a court would not have a difficult time handling two Canadian men who married each other who happened to be in Paris on vacation.
November 20th, 2012 | 10:27 am
Re: “the indissolubility of marriage”
It would help if you were to be a bit more specific and talked about the indissolubility of RELIGIOUS marriage.
The preformance of the religious Rite of Holy Matrimony – by itself – does NOT make for a LEGAL marriage. It needs to be accompanied by a State-issued license, by the signing of the State-issued registration documents by the officiant, the couple and witnesses, and by the officiant proclaiming, “And now, by the authority vested in me … BY THE STATE …”.
Without these, a religious marriage is not a legal marriage.
Meanwhile, people get married at City Halls across the nation every day with nary a WORD of ‘God-talk’.
If you wish to impose your religious beliefs on others seeking equal CIVIL marriage, your cause is a lost one.
November 20th, 2012 | 12:08 pm
tell the truth,
This thought just occurred to me. Some people view marriage as being in some ways like mathematics, while others view it as being in some ways like (natural) language. Those who view it as like mathematics (generally the defenders of “traditional” marriage) think the definition exists apart from what people do. They insist that marriage is between one man and one woman, and that it is permanent, even though if you look at the history of marriage, it hasn’t been like that at all, and in fact polygamy is still legal in about fifty countries. Defenders of “traditional” marriage sometimes call it “Biblical” marriage, when some of the greatest figures in the Old Testament had multiple wives.
Those who view marriage as being like language look at what people have done and do, and they come up with a definition of marriage by trying to accommodate all of the “marriage-like” arrangements in history and in contemporary societies in one definition. It’s similar to the way dictionaries give definitions and pronunciations for words. And of course dictionaries recognize that they are not ultimate authorities, since meanings and pronunciations of words change, and those who publish dictionaries revise them periodically to reflect changes.
So the question is whether the institution of marriage has some kind of existence apart from the way people give it. Is polygamous marriage not marriage because there is some kind of Platonic ideal of marriage somewhere that can be referred to? Or is polygamous marriage truly marriage because it is the way many people did what they considered to be marrying?
November 20th, 2012 | 12:22 pm
Booton
The questions that polygamous unions have raised are
1 Are the parties married or single? Have they entered into what the Code Civil means by a “marriage”? This question arises whether the marriage is actually, or merely potentially, polygamous.
2 Can they obtain a divorce,a judicial separation or a decree for aliment?
3 Is their home a “matrimonial home” with the reserved rights given by French law to a non-owning spouse?
4 Are donations between them voidable? (In France, those between spouses are, but not those between a PACSed couple are)
5 Questions of inheritance, tax, welfare benefits, nationality and residence rights.
In the case of the Canadian same-sex couple, precisely the same questions could be argued.
The service juridique de la fiscalité au ministère des finances has recognized a Dutch same-sex couple as married for the purposes of an EU Directive on double-taxation relief, but the finding was very narrowly framed.
November 20th, 2012 | 1:19 pm
David,
Those who say same-sex marriage is a “legal fiction,” if they are Bible-believing Christians, would also have to say that civil divorce and remarriage are also “legal fictions.”
And look at how much the legal fiction of civil divorce costs us as a society, and as individuals within that society.
I simply don’t understand those who believe that same-sex marriage is some kind of significant threat to marriage itself. I think the reaction against same-sex marriage springs much more from moral disapproval and visceral negative reaction to the idea of people of the same gender engaging in sex acts than it does from a rational concern for the institution of marriage.
That’s an unfortunate, though typical, response. It is one thing to disagree with opponents of same sex marriage. It is another thing to say that our arguments are simply lies to cover our homophobia.
Mr. Melendez is correct that in that the issue is one of the ongoing definitional changes of marriage. Where once we understood it to be a permanent union between a man and a woman, we now consider marriage to be a dissolvable union between a man and a woman. Today we appear to be moving to an understanding of marriage as a dissolvable union between two people, regardless of their gender.
“So what?” proponents of same sex marriage say, “Marriage is a man-made institution, and we can define it however we like.”
The problem is that redefining marriage in these ways both reflects and reinforces a belief about the purpose of marriage that is radically different than how marriage has been understood throughout human history, and which will ultimately lead to the end of marriage as a meaningful societal institution.
We no longer consider marriage to center around children and child-rearing. We have increasingly bought into the notion that marriage is primarily, if not solely, concerned with the emotional happiness of the people who are married to one another. Therefore, when the romance is gone, if the marriage no longer serves to make those within it happy, it only makes sense to end it.
And if marriage is really all about the emotional fulfillment of two people who love each other, what sense does it make to deny that fulfillment to gays? Little, it would seem.
But one has to ask: Is marriage properly understood primarily as a vehicle for emotional happiness? Or has marriage long been viewed as the fundamental building block of society for a very much more concrete reason- namely the propagation and raising of children?
Put another way, what overriding interest does the state have in recognizing your (possibly) temporary romantic involvement? And ultimately, what interest do two or more individuals have in official state recognition of their love lives?
I think it’s true that same sex marriage is the logical result of a widespread misunderstanding of marriage in our culture. I also think it’s critical to work towards restoring a healthier understanding of marriage, its purpose, and why it’s actually important in society. Unfortunately, same sex marriage, if it becomes widely accepted, will likely preclude that possibility, as it will complete the divorce between marriage and children in the popular mind.
November 20th, 2012 | 1:56 pm
Michael PS
In the case of the Canadian same-sex couple, precisely the same questions could be argued.
I think you’re dodging the issue I raised. Let’s just look at one issue:
3 Is their home a “matrimonial home” with the reserved rights given by French law to a non-owning spouse?
Consider this case with SSM versus polygamy. How would SSM work? Same way the law works today. If Husband A owns a house, then Husband B would have whatever rights French law gives a non-owning spouse. All a judge need do is look at French law and apply it to the couple as if they were married under French law.
Now what about a polygamous couple of a man and three wives? The man owns the house, what about the wives who are non-owning spouses? Do they split the ‘rights’ 1/3 each? Is there an element of tenure where the wife with the most years into the marriage has more of a say? If the wives disagree among themselves on how to exercise those rights, how does the law decide which one will speak for the non-owning spouse’s side?
With SSM the answers are obvious. But it’s not with polygamy. Again go back to the NFL. If you asked the NFL to have an all female football team playing all male teams, that wouldn’t change the structure of the game. Maybe the NFL has a rule against female teams but the structure of its game wouldn’t have to be modified. If you asked the NFL to let three or four teams play each other at once, you couldn’t just say ‘relax the prohibition on more than two teams playing each other’. You’d have to sit down and draw up a whole new type of game.
November 20th, 2012 | 2:04 pm
David Nickol
The question is not one of a Platonic ideal of marriage, or of some form of Natural Law, but whether the Civil Code is to be coherent.
Legally speaking, a couple can structure their relationships in a number of different ways: unregulated cohabitation, registered cohabitation (certificat de concubinage notoire) a civil union (pacte civil de solidarité (PACS)) and marriage. All but marriage are open to both same-sex and opposite-sex couples. The question then becomes whether this is a principled distinction. Is there something that distinguishes marriage from the other arrangements and justifies confining it to opposite-sex couples?
Likewise, the question over polygamous marriage is whether the parties’ understanding of the rights and obligations they undertook when entering into that union are sufficiently similar to those that govern marriage under the Civil Code to justify the courts in applying the same rules to them.
Now if, for example, one were to decide to allow same-sex couples to marry, but, in their case to exclude Article 312 (“The child conceived or born during the marriage has the husband for father”) as they have done in Belgium and the Netherlands, then, as a matter of analysis, we have two different kinds of marriage and little, in my submission is gained by calling them by the same name – and how do these same-sex marriages differ from civil unions?
I have yet to see a satisfactory answer to this question.
November 20th, 2012 | 4:30 pm
Michael PS
The question is not one of a Platonic ideal of marriage, or of some form of Natural Law, but whether the Civil Code is to be coherent…..Legally speaking, a couple can structure their relationships in a number of different ways:…All but marriage are open to both same-sex and opposite-sex couples. The question then becomes whether this is a principled distinction. Is there something that distinguishes marriage from the other arrangements and justifies confining it to opposite-sex couples?
It sounds like your most important value here, your most fundamental assumption, is that French Civil Law must be coherent at all costs. Nothing else matters.
What’s perplexing about this is that French Civil Law is only a few hundred years old and clearly written by fallible humans. It seems quite sensible to me to simply say that the law should be tweaked as time and experience changes. Doing that doesn’t make the law incoherent.
And your coherency argument seems centered not on the structure of the institution but categories it excludes. Leave same sex couples out of the picture for a moment. A heterosexual couple comes to you for advice about how to live together under French law. You say to them they have three options; unregulated cohabitation, regulated cohabitation (aka PACS), and marriage. Is the only difference relating to biological children formed from the union of the couple?
Unless you answer yes to that last question, I don’t think you have a coherency argument here. There’s 3 different types of unions in French law because there are three different types of ways of categorizing the legal responsibilities of such relationships, each one carrying different levels of rights and obligations.
The only way you get to a coherency argument is if French Civil Law only addresses biological children in marriage and other than that there is zero difference between marriage and PACS.
November 20th, 2012 | 10:53 pm
The commenters here are mistaken to speak of the tradition of “marriage” when in fact each of us experiences many marriages as we and our relationships age.
There is the marriage of our twenties and thirties, when we hope for, bear, and raise small children.
There is the marriage of our fourties, when we guide and develop these children into adulthood, and send them off into the world.
There is the marriage of our fifties and beyond, which for most couples involves no children in the home at all, yet the relationship means as much to us as ever.
Couples have always been able to marry even with no prospect of child bearing, and those who do have children are allowed to remain married after that phase has passed.
All that same-sex couples are asking for is to participate in those parts of marriage that they choose to and are capable of engaging in. To deny them civil marriage is both cruel and unjust.
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