Marriage

March 27, 2013

I think this video strikes a reasonably good balance:  It tries to present a lot of the (pretty abstract) arguments for the traditional definition of marriage; at the same time, it tries to be brief and engaging for a general audience.

If even this video is too abstract for you—if, truth be told, you find the arguments people have about the legal definition of marriage a bit boring—nothing is wrong with that; no doubt God made you that way.

But then, if that is the case, should you really be second-guessing the accumulated wisdom of countless generations of humanity that came before you?

For anyone who thinks that our society should change the legal definition of marriage, first you should contemplate, understand, and be able to articulate why the government should have a “definition of marriage” in the first place.  If you can’t answer that, you should not then try to tell the rest of us what that definition should be.  The former is logically prior to the latter.  In my experience, those who would change the definition of marriage have almost never started with the first question.

Very briefly, I would say that the primary purpose of having a public or legal such thing as marriage is to keep track of whom children belong to, and to try to give them a stable, wholesome environment to grow up in.  If you are able and willing to contemplate abstract ideas beyond the level of that video, I recommend National Review and Jennifer Roback Morse, who explain this at more length.

By the way, whatever you think of our reasoning, our definition of marriage isn’t just some eccentric private opinion of conservatives.  With the exception of very recent innovations in Europe and Canada, no culture in any time or place in human history has had a definition of marriage that included same-sex couples.  Via Mark Steyn (“Married by the Judge”), Paul Mirengoff observes,*

The fact that, until very recently, marriage has universally been deemed to require an opposite sex component doesn’t mean that this component must be required forevermore. But a decent appreciation of democracy, human history, and the fallibility of the individual means that nine glorified lawyers shouldn’t be the ones who make the change. Nor should they be in a position where they might make it.

The reason everyone is talking about this is that the Supreme Court is hearing oral arguments this week about whether to strike down, as somehow “unconstitutional”, California’s Proposition 8 and the national Defense of Marriage Act (DOMA).  Remember, we’re only talking about the legal definition of marriage:  Should it remain the same as it has been for millennia, or should it be changed (by a handful of unelected judges)?  This is not a question of “bans” on “gay marriage”, as almost everyone seems to insist on calling it.  Homosexuals are free to have sex with persons of the same sex (the Supreme Court declared all anti-sodomy laws “unconstitutional” in 2003), and free to call themselves “married” to their friends, and free to get a religious ceremony from like-minded religious groups.  The only question is whether the state’s definition of marriage must be changed to extend to same-sex couples.

California didn’t “ban” anything.  The people of California amended their state constitution to clarify that the definition of marriage, under California law, would remain what it has always been: one man and one woman.

It would be even further from the truth to say that Congress, in passing the national Defense of Marriage Act, was “banning” anything.  DOMA does two main things:

  1. It reiterates that the definition of marriage for purposes of federal law is the same as it always was: one man and one woman.
  2. It protects the states.  In the event that some states change their definition of marriage to extend to same-sex couples (as some have since done), it provides that other states will still be allowed to maintain their definition; in other words, unelected judges in one state can force that state to change its definition of marriage, but they cannot force people in other states to change their definition of marriage.

I’ll try to address some common objections.

Not everyone has children!  On your theory, shouldn’t the government refuse to grant marriage licenses to the old or infertile?”

Well, no.  The primary purpose of having a legal category of marriage in the first place stems from the fact that sex (between a man and a woman) sometimes produces children.  That union is the same in kind regardless of whether a particular couple produces any children.  Further, it would be both less practical and more intrusive to try to have the government sort out which particular couples were more likely to conceive children and which less likely before it grants them marriage licenses.  It would also be both less practical and more intrusive for the government to try to “get out of the marriage business” entirely.  That leaves two possibilities: the status quo (legal marriage for couples of men and women) and changing the legal definition of marriage to extend to same-sex couples.  The latter is not justified by the purpose of legal marriage.  The former advances that purpose.  It’s the logical choice.

“But marriage is really emotionally important!  Shouldn’t the government give my choice of sexual partner its stamp of approval?”

I don’t see why.  Some would argue that platonic friendships can be even deeper or more important in some ways than marriage.  Should the government start licensing our friendships?  For many of us, in our lives, our relationship with God is the most important relationship of all.  Should the government start licensing that?

“But everyone else is doing it!  Don’t you want to be popular?”

I’m sure I don’t need to tell you that being popular doesn’t make something true.  As discussed above, changing the legal definition of marriage to extend to same-sex couples would make our marriage policy incoherent; that is true whether 10% or 100% of the country supports such a change.

That said, of course most people will say they want to change the definition of marriage, when the culture (including but not limited to the entertainment media) tells them over and over again that anyone who thinks otherwise must be a bigot or motivated by irrational fear or hatred.

Also significantly, the poll questions have not been phrased neutrally.  A more nearly neutral phrasing would be something like “How should the state define marriage?” or “Can marriage include (check all that apply) two men, one man and one woman, one man and two women,” etc.  Another reasonable phrasing would be “Do you favor changing the legal definition of marriage to extend to same-sex couples?”

Gallup finds 50% of Americans in favor of the legal change and 48% opposed, but Gallup phrases the question, “Do you think marriages between same-sex couples should or should not be recognized by the law as valid, with the same rights as traditional marriages?”  It implicitly assumes, as a starting point, that there is such a thing as a “marriage” between two persons of the same sex; the only question is whether the state will “recognize” it as “valid”, or whether the state will deny some people their “rights”.

Americans love freedom and they love rights, even when they’re not thinking very clearly about what someone means by those terms; so of course questions in the nature of “Should homosexuals have the same rights as anyone else?” will tend to elicit a “Yes”.  I think the poll would get a very different answer if it asked questions like “Should every child have the right to both a mother and a father?”

Pew reports similar results—49% in favor of the change, 44% opposed—but with similar defects:  The question asked was “Do you strongly favor, favor, oppose, or strongly oppose allowing gays and lesbians to marry legally?”  No one wants to be opposed to “allowing” people to do things.

It would probably be politically incorrect to mention the evidence that addiction to pornography may also be compromising people’s judgment.

Remember, even with all these factors tending to pull the country in the direction of the change, some four fifths of the states (representing more than four fifths of the country’s population) still define marriage as between a man and a woman.  About 30 of the states do so in their state constitution.

 

One more thing.  You’ll notice two things that aren’t in any of the arguments I just made:  I didn’t make any religious arguments, and I didn’t say anything about whether homosexuality is immoral.  I don’t have to.  Whatever you think about the truth of any religion or the morality of any sexual practice, the above statements are all true, and we should all be able to agree that the legal definition of marriage should remain as it has always been, between a man and a woman.

I also didn’t call any names.  I wasn’t angry.  I don’t hate persons who are attracted to, or have sex with, people of the same sex.

For a long time, liberals—from friends of mine trying to argue with me on Facebook to the very top (e.g., the president of the United States and justices of the Supreme Court) have sometimes substituted assuming bad motives of those they disagree with (smearing them as motivated by hatred, anger, etc.) for substantive arguments.**  I’m not here to muse on whether that implies that there’s something rotten at the core of liberalism.  I am here to have a conversation.

So please, if you want to comment, do feel free to disagree with me, but actually go to the trouble of disagreeing on the substantive arguments.  Please don’t call me names or accuse me or my side of hatred or other irrational bad motives.  I know this is the Internet, but that’s no reason we can’t have a civil discussion with each other.  Treat me the same way you would treat someone you’re having a conversation with in person.  (If you’re a jerk in person, treat me better than you would treat someone in person.)

And if you are angry with me but can’t really formulate a substantive argument or think clearly about the issues themselves, please consider the possibility that you should leave public policy to the people who can.

 

* Interestingly, Maggie Gallagher points out that earlier this month, Supreme Court Justice Anthony “Swing Vote” Kennedy seemed to say that he agrees:

A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.

** Rich Lowry points out that this is at least sometimes absurd on its face.

In this view, the promoters of Proposition 8 came up with a definition of marriage that has stood for centuries in the West and is endorsed by every major religion simply as an imaginative way to stick it to gay people. Every serious contender in the Democratic presidential primary in 2008, including Barack Obama, supported this same definition, presumably also out of the same simmering hostility to gays.

Related entries:

Coverage elsewhere:

Unilateral truce is not a strategy.

There has been only one study using a large randomized sample, objective measures of well-being, and reports of grown children rather than their parents. This research, by Mark Regnerus, a sociologist at the University of Texas Austin, found that children raised in a household where a parent was involved in a same-sex romantic relationship were at a significant disadvantage with respect to a number of indicators of well being—such as depression, educational attainment and criminal behavior—compared with children of intact biological families.

One might expect this work at least to raise a caution flag, but it has been vociferously attacked on methodological grounds by the same organizations that tout the value of politically congenial research that suffers from more severe methodological shortcomings. This is what one expects from activists, not scientists.

 — See also Well-spent Journey on the Loren Marks and Mark Regnerus studies.

If one accepts contemporary feminism’s premise that men and women are essentially interchangeable, it is very difficult to formulate a coherent reason why, for the purposes of marriage, one of each should be treated any differently from two of one or the other.

I dated some great guys, and was in a couple of long-term relationships. Over several years, intellectual honesty led me to some unexpected conclusions: (1) Creating a family with another man is not completely equal to creating a family with a woman, and (2) denying children parents of both genders at home is an objective evil. Kids need and yearn for both.

Update (May 20th, 2013): Mark Steyn contemplates further.

Underneath all this apparent “fairness” is a lot of unfairness. Entire new categories of crime have arisen in the wake of familial collapse, like the legions of adolescent daughters abused by Mom’s latest live-in boyfriend. Millions of children are now raised in transient households that make not just economic opportunity but even elementary character-formation all but impossible. . . .

“Fiscal conservatives” recoil from this kind of talk like homophobes at a bathhouse: The sooner some judge somewhere takes gay marriage off the table the sooner the right can go back to talking about debt and Obamacare without being dismissed as uptight theocratic bigots. But it doesn’t work like that. Most of the social liberalism comes with quite a price tag. The most reliable constituency for Big Government is single women, for whom the state is a girl’s best friend, the sugar daddy whose checks never bounce. A society in which a majority of births are out of wedlock cannot be other than a Big Government welfare society. Ruining a nation’s finances is one thing; debauching its human capital is far harder to fix.

Statistically speaking, one-third of 1 percent of all Canadian nuptials are same-sex, and, of that nought-point-three-three, many this last decade have been American gays heading north for a marriage license they’re denied in their own country. So gay marriage will provide an important legal recognition for an extremely small number of persons who do not currently enjoy it. But, putting aside arguments over the nature of marital union, the legalization of gay marriage will empower a lot more “vigilance” from all the right-thinking people over everybody else.

Mr. Mutchnick’s comparison of the word “homosexual” with “Negro” gives the game away: Just as everything any conservative says about anything is racist, so now it will also be homophobic. . . .

. . . Indeed, he even took the precaution of averring that he didn’t “have a strong feeling either way.”

You sick bigot theocrat hater! Not having a strong feeling is no longer permitted. The Diversity Celebrators have their exquisitely sensitive antennae attuned for anything less than enthusiastic approval.

(Read the whole thing.)

 

(I also corrected a punctuation mark above.)

15 Responses to “Marriage”

  1. Snoodickle Says:

    “I would say that the primary purpose of having a public or legal such thing as marriage is to keep track of whom children belong to, and to try to give them a stable, wholesome environment to grow up in.”

    So would you agree that children of gay couples should be able to live in a world where their parents are married?

    As to the history of marriage, should I put my trust in the wisdom of generations who thought slavery, segregation, and anti-miscegenation laws were good public policy?

    I’d also like to address some of your legal arguments. Putting aside that Prop 8 did in fact withdraw a right to marriage established by the California Supreme Court, reasonable minds can certainly disagree about whether the stated government rationales for excluding same-sex couples from the institution of marriage are rationally related to the legitimate state interests of fostering monogomous relationships and responsible procreation. However, it is exceedingly difficult to argue that those rationales apply to a state like California, which bestows upon gay couples all of the incidents and burdens of marriage, but withholds only the designation. I would be very interested to hear your argument in defense of the “everything but marriage” policy on constitutional grounds.

    As to DOMA, you are indeed correct that it does not ban gay marriage. That is why a Supreme Court decision striking down the defintional section on either federalism or equal protection grounds (which appears quite likely) would not establish a nationwide right to gay marriage, as it would be completely incongruous for the Court to strike down gay marriage bans in a case involving a law that does not even ban gay marriage. In any event, it would seem that a states-rights champion such as yourself would be inclined toward the view that the defintion of marriage should be, and is, the sole province of the states, and the definitional section of DOMA is therefore unconstitutional under the Tenth Amendment.

    As to the section of DOMA that explains that states need not reconize gay marriages from other states, that section is completely redundant of the common law public policy exception to the recognition of judgments and licenses from other states. In other words, the states-rights section of DOMA has no substance, but is merely duplicative of state law. Of course, that section is not before the Court, and I’m not sure it would make sense to challenge it anyway.


    • “So would you agree that children of gay couples should be able to live in a world where their parents are married?”

      If we think groups of people other than married couples should be legally permitted to adopt, then that needn’t be limited to couples, normal or otherwise. A single woman could adopt. Three unmarried sisters living together with their aging mother could adopt.

      If we think only married couples should be permitted to adopt, then part of my answer is that (as in the discussion of discrimination) the burden is then on those promoting the current change to show that children and society would benefit from including same-sex couples, but not other groups or arrangements of people. I think the burden would also be on them to show that that benefit would not be outweighed by a corresponding cost to the ability of the institution of marriage to attract those who will copulate and produce children and induce them to remain together long enough to raise those children.

      • Snoodickle Says:

        I’m not sure your dissertation on adoption addresses the point I made: if same-sex parents desire to marry, should society be able to deprive their children of the stability and feeling of self-worth that comes with having married parents?


    • “As to the history of marriage, should I put my trust in the wisdom of generations who thought slavery, segregation, and anti-miscegenation laws were good public policy?”

      You’re wrong two ways at once; so I offer both counterarguments.

      First, those American institutions are nothing like as culturally universal across times and places as the absence of such a thing as “same-sex marriage”. With respect to anti-miscegenation laws, for example, Mark Steyn puts it well:

      “If the Right’s case has been disfigured by delusion, the Left’s has been marked by a pitiful parochialism. At the Supreme Court this week, Ted Olson, the former solicitor general, was one of many to invoke comparisons with Loving v. Virginia, the 1967 case that struck down laws prohibiting interracial marriage. But such laws were never more than a localized American perversion of marriage. In almost all other common-law jurisdictions, from the British West Indies to Australia, there was no such prohibition. Indeed, under the Raj, it’s estimated that one in three British men in the Indian subcontinent took a local wife. ‘Miscegenation’ is a 19th-century American neologism. When the Supreme Court struck down laws on interracial marriage, it was not embarking on a wild unprecedented experiment but merely restoring the United States to the community of civilized nations within its own legal tradition.”
      http://www.nationalreview.com/articles/344287/death-family-mark-steyn

      As Steyn points out elsewhere ( http://www.hughhewitt.com/mark-steyn-on-the-marriage-debate-at-the-supreme-court/ ), Justice Kennedy himself—not one of the most conservative members of the court—alluded to this history during oral arguments, concluding, of Mr. Olson’s argument, “so that’s not
      accurate” ( http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-144.pdf , page 49, lines 9-19).

      The interracial-marriage parallel also fails for another reason that may be subtler, but is arguably even more significant: It’s essentially different. When Jim Crow states banned interracial marriage, they understood themselves to be _banning_ it—in other words, everyone on all sides understood that it was possible for a man of one color to marry a woman of another color; no one thought that this would not qualify, by definition, as marriage. Those passing these laws understood themselves to be trying to stop something that was otherwise very possible. Here are sections from the Virginia statute that the Supreme Court struck down when it declared laws against interracial marriage unconstitutional (the beautifully named _Loving vs. Virginia_, 1967):

      “Section 257 of the Virginia Code provides:
      “Marriages void without decree. — All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.
      “Va.Code Ann. § 20-57 (1960 Repl. Vol.).”

      “Section 20-54 of the Virginia Code provides:
      “Intermarriage prohibited; meaning of term ‘white persons.’ — It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. . . . All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter.
      “Va.Code Ann. § 20-54 (1960 Repl. Vol.).”

      http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html#388_US_1n3


    • Second, given that there has been variation across cultures in areas other than the question of “same-sex marriage”, I think that makes my argument stronger, not weaker. Yes, different cultures have varied on, for example, slavery. Yet somehow all of these societies agreed that there’s no such thing as a marriage between a man and another man.

      • Snoodickle Says:

        But now a majority of our culture believes that there should be. You can’t fight cultural change!


    • “. . . reasonable minds can certainly disagree about whether the stated government rationales for excluding same-sex couples from the institution of marriage are rationally related to the legitimate state interests of fostering monogomous relationships and responsible procreation. However, it is exceedingly difficult to argue that those rationales apply to a state like California, which bestows upon gay couples all of the incidents and burdens of marriage, but withholds only the designation. I would be very interested to hear your argument in defense of the ‘everything but marriage’ policy on constitutional grounds.”

      I agree that marriage-in-all-but-name “civil union” laws seem pretty silly. Like some other silly policies, I suppose they’re the result of political compromises. I suppose they’re better than going all the way, but worse than simply maintaining the legal definition of marriage as it was before. My first argument would be that the legal incidents you mention are part of the state’s complex effort to maintain marriage as a respected, desirable institution, and so persuade people who are going to have sex and produce children to do it in this relatively stable, societally beneficial way. Because same-sex couples cannot produce children, society needn’t give them an incentive to stay together, and its doing so at best only dilutes its effort to persuade those who may produce children. As I said above, I think the burden would be on proponents of the change to show that any benefit would not be outweighed by a corresponding cost to the ability of the institution of marriage to attract those who will copulate and produce children and induce them to remain together long enough to raise those children.

      See, e.g., John Derbyshire for further contemplation of this:
      http://www.johnderbyshire.com/Opinions/HumanSciences/straightflight.html

      • Snoodickle Says:

        Putting aside the question of whether there’s a right to gay marriage, do you agree that the “everything but” laws are lacking in a rational basis?


    • “. . . it would seem that a states-rights champion such as yourself would be inclined toward the view that the defintion of marriage should be, and is, the sole province of the states, and the definitional section of DOMA is therefore unconstitutional under the Tenth Amendment.”

      No; as long as the federal government has anything to do with marriage—e.g., when we file our income-tax returns—I think it is wholly legitimate for the federal government to have a position on what constitutes “marriage”. I don’t suppose you would say, for example, that a state should be allowed instantly to redefine all of its millionaires as legally “married” to all their children, for the purpose of insulating the citizens of that state from the federal estate tax?

      • Snoodickle Says:

        Big government lover!

        As to your goofy hypothetical, no state in its right mind would pass such a law (well, maybe Texas). That aside, even if the federal government lacks the power to define what consitutes marriage, a state law whose sole purpose is a subterfuge to circumvent federal tax law would obviously be preempted under the Supremacy Clause. Thus, I have to respectfully reject your reasoning.

  2. Snoodickle Says:

    Wait a second, what happened to my post?


  3. […] Steyn put it well on the occasion of the U. S. Supreme Court cases last year.  Forget about the larger context of world history, laws against interracial marriage in the […]


  4. […] (June 26th, 2015):  I am reminded that according to Maggie Gallagher, Kennedy also said this, albeit not in the context of this […]


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