All-Purpose Gay Marriage Post
The weekend’s posts about Jody Bottum’s semi-conversion on same-sex marriage — see here and here — generated lots of comments, including a number of questions about my own stance on gay marriage. I planned to answer them all this morning, but yesterday suffered a fairly major relapse of mononucleosis, and find myself exhausted and foggy-headed this morning in a way I haven’t been for half the summer. I just called and made an appointment with a rheumatologist, because I’m going into month 8 with this latest round, and I’m just flat-out sick and tired of being sick and tired.
I just don’t have it in me to parse the threads today and pick out the questions piece by piece. Rather, I think I’ll put up an all-purpose gay marriage post that will answer the persistent questions that I think I’ve answered in other places, but apparently I haven’t to the satisfaction of some of you. In the future, please refer to this post. I don’t want to go over this again.
First, an easy one:
1. What kind of special carve-outs from anti-discrimination law regarding gays and married gays do you think religious traditionalists should have?
Ideally? I’d like for religious institutions — including schools, charities, and the like — and individuals to retain the right to discriminate on the basis of sexual preference. In other words, I think that anti-discrimination laws that include gays in the protected categories should not be made to apply to religious institutions or individuals (business owners, landlords) who seek an exemption. And I believe these institutions and businesses shouldn’t have to treat married gay couples as married with regard to benefits.
2. What makes religious people so special that they should get a pass under the law? We don’t let them do it for race.
Several things here. As a matter of civic prudence, accommodating the enormous number of Americans who do not accept gay marriage is a wise thing to do. Given how their number is steadily shrinking, this is a compromise that our society could reasonably make. Similarly, religious people ought to recognize that gays have legitimate grounds for their needs being accommodated, so religious traditionalists ought to concede some ground to them, e.g., granting civil unions.
Second, homosexuality is not like race in that race does not produce a morality. Heterosexuality — or at least the expression of heterosexuality — is not morally neutral either, at least not from the point of view of religious traditionalists. Homosexuality, at least at the marriage level, was until virtually yesterday forbidden, and in many cases criminalized. Few people — least of all me — want to go back to those days, but SSM proponents should get some perspective and recognize how radical SSM is, simply as a historical matter. In 50 years, the way almost all cultures have viewed marriage — as essentially an institution based in sexual complementarity that provides for the care and raising of children, and therefore for social stability — has been demolished. This is absolutely revolutionary. One can support greater rights and liberties for gays and lesbians than they have had in the past — I certainly do — without agreeing that the definition of marriage should change. Like it or not, the moralization of sexuality is an inextricable part of law and society. There are no laws or customs forbidding people to be black, and those that existed were rightly overturned. There are laws and customs regulating sexual expression, laws that nearly everybody believes in. We all agree that there ought to be an age of consent for sexual relations, though we may disagree where to draw that line. We all agree that rape is wrong. We all agree that incest is wrong. And so forth. This means that at some level, we all believe that there is a moral dimension of sexual desire and expression. Our society is moving the lines to moralize homosexuality, which was formerly taboo. All I’m asking is that SSM proponents recognize that the traditionalist position may be wrong, but it is not unreasonable. That’s an important distinction, and one that calls for accommodation, at least while we go through this transitional stage of cultural evolution.
Third, religious liberty is one of the foundational ideals of the United States of America. Equality is also. These two have to be balanced out, but we have shown that it can be done, e.g., in laws granting religious exceptions for sex discrimination in certain conditions. It’s not like we’ve never dealt with this before.
3. There is no reason, other than conservative readings of the Bible, to oppose SSM. Your side has offered no argument on that point. This is a secular country. Why should we base our marriage law on what the Bible says?
The biggest myth around this entire issue is that the only reason to oppose SSM is religious. When people say that, what they really mean is, “I haven’t heard any non-religious argument against it, and I can’t imagine what that would look like, so it must not exist.” The media have done a great job ignoring the possibility of non-religious arguments against same-sex marriage, so it’s no surprise that many Americans are not aware that they exist.
The very best non-religious argument is made by Robert George, Sherif Girgis, and Ryan T. Anderson in their short book What Is Marriage? This book has the hard clarity of a diamond. Having interviewed Anderson recently for an article, I bought his book on Kindle over the weekend to help clarify my own thoughts. I was taken aback by how terrific it is, and how it challenged some of my own assumptions, even as a supporter of privileging traditional marriage. I cannot recommend this book strongly enough for thoughtful people on both sides of the marriage debate. SSM backers ought to read it to know the depth and seriousness of non-religious arguments against gay marriage, and to grasp a point that eludes the US Supreme Court: there really are reasons to oppose gay marriage that do not rely on irrational animus. Religious SSM opponents should read it for the same reason: to understand how they can defend through philosophy what they take on faith. Because George, Girgis, and Anderson do such a magnificent job of distilling the argument and presenting it clearly, I’m going to quote them at length, because they say it better than I possibly could.
It’s important to emphasize that their argument is not religious, nor is it about the moral status of homosexuality, or about homosexuality at all. It’s about marriage: what it’s for, and why it’s important to retain the traditional understanding of it rooted in sexual complementarity. Here is their argument, in summary:
There is a distinct form of personal union and corresponding way of life, historically called marriage, whose basic features do not depend on the preferences of individuals or cultures. Marriage is, of its essence, a comprehensive union: a union of will (by consent) and body (by sexual union); inherently ordered to procreation and thus the broad sharing of family life; and calling for permanent and exclusive commitment, whatever the spouses’ preferences. It has long been and remains a personal and social reality, sought and prized by individuals, couples, and whole societies. But it is also a moral reality: a human good with an objective structure, which it is inherently good for us to live out.
Marriages have always been the main and most effective means of rearing healthy, happy, and well-integrated children. The health and order of society depend on the reading of healthy, happy, and well-integrated children. That is why law, though it may take no notice of ordinary friendships, should recognize and support marriages.
There can thus be no right for nonmarital relationships to be recognized as marriages. There can indeed be much harm, if recognizing them would obscure the shape, and so weaken the special norms, of an institution on which social order depends. So it is not the conferral of benefits on same-sex relationship itself but redefining marriage in the public mind that bodes ill for the common good. Indeed, societies mindful of this fact need deprive no same-sex-attracted people of practical goods, social equality, or personal fulfillment.
Here, then, is the heart of our argument against redefinition. If the law defines marriage to include same-sex partners, many will come to misunderstand marriage. They will not see it as essentially comprehensive, or thus (among other things) as ordered to procreation and family life — but as essentially an emotional union. For reasons to be explained, they will therefore tend not to understand or respect the objective norms of permanence or sexual exclusivity that shape it. Nor, in the end, will they see why the terms of marriage should not depend altogether on the will of the parties, be they two or ten in number, as the terms of friendships and contracts do. That is, to the extent that marriage is misunderstood, it will be harder to see the point of its norms, to live by them, and to urge them on others. And this, besides making any remaining restrictions on marriage arbitrary, will damage the many cultural and political goods that get the state involved in marriage in the first place.
Anderson put this another way in our interview: “We have to understand what marriage is so marriage can do what it has to do.” (That’s a close paraphrase.) In the book, Anderson and his co-authors contrast a “conjugal” view of marriage with the contemporary “revisionist” view. Here they are, from the essay that became the book (if you don’t plan to buy the book, at least follow that link for the basics of the argument):
Conjugal View: Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts – acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.
Revisionist View: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear.
It’s obvious that the revisionist view has been mainstream in American society for 50 years. This is why people like me concede that gay marriage has been accepted so readily because it only follows naturally from what people already believe about what marriage is. As Anderson et al. demonstrate in What Is Marriage?, same-sex marriage is devastating to the conjugal view because it locks in place the revisionist view of what marriage is in its essence. And that, in turn, makes it impossible for marriage to do what it has to do: create stable families in which to raise and socialize the next generation.
Why? Because it means that marriage is more or less a social construct that we can alter according to our feelings. Anderson et al. don’t deny that the institution of marriage is at least partly constructed, according to cultural norms. But the fallacy of revisionists, they say, is in saying that because marriage is partially constructed, then it is entirely constructed. The core of marriage has to do with sexual complementarity, and sacralizing the bond between the male-female pair, whence come children. If people come to believe marriage is nothing more than a contract between two parties who share deep emotional affinity for each other, those marriages will be much easier to dissolve — which is exactly what has happened with no-fault divorce. In turn, this has been very hard on children and single mothers, emotionally, psychologically, and economically.
When people ask, “What harm does gay marriage do to you?”, they can’t come up with any direct harms, so they assume harms must not exist. The harm is that SSM changes for good the way we think about marriage. From the book:
Prominent Oxford philosopher Joseph Raz, no friend of the conjugal view, agrees:
[O]ne thing can be said with certainty [about recent changes in marriage law]. They will not be confined to adding new options to the familiar heterosexual monogamous family. They will change the character of that family. If these changes take root in our culture then the familiar marriage relations will disappear. They will not disappear suddenly. Rather they will be transformed into a somewhat different social form, which responds to the fact that it is one of several forms of bonding, and that bonding itself is much more easily and commonly dissoluble. All these factors are already working their way into the constitutive conventions which determine what is appropriate and expected within a conventional marriage and transforming its significance.
Redefining civil marriage would change its meaning for everyone. … This wouldn’t just shift opinion polls and tax burdens. Marriage, the human good, would be harder to achieve. For you can realize marriage only by choosing it, for which you need at least a rough, intuitive idea of what it really is. By warping people’s view of marriage, revisionist policy would make them less able to realize this basic way of thriving — much as a man confused about what friendship requires will have trouble being a friend. People forming what the state called “marriage” would increasingly be forming bonds that merely resembled the real thing in certain ways, as a contractual relationship might resemble a friendship. The revisionist view would distort their priorities, actions, and motivations, to the harm of true marriage.
And, as many of us have been saying for some time, if marriage has no essential definition, and if its shape is defined only by desire, on what grounds may we limit it only to dyads? A group of several hundred people — many of them prominent journalists and law professors (including the now-EEOC chief Chai Feldblum), signed a Beyond Same-Sex Marriage statement, one that calls for “legal recognition for a wide range of relationships, households and families – regardless of kinship or conjugal status.” And why not? Once you have established that marriage has no fixed core meaning, you are free to modify it as equality demands.
Finally, there is the cultural matter:
If civil marriage is redefined, believing what virtually every human society once believed about marriage — that it is a male-female union — will be seen increasingly as a malicious prejudice, to be driven to the margins of culture.
It’s already happening. As I’ve said, in three rulings — most recently in Windsor — the US Supreme Court has held that the only reason to treat gays differently is because of malicious prejudice. In culture, we are fast getting there. As Michael Kinsley, who supports gay marriage, wrote after Dr. Ben Carson criticized same-sex marriage:
All he did was say on television that he opposes same-sex marriage—an idea that even its biggest current supporters had never even heard of a couple of decades ago. Does that automatically make you a homophobe and cast you into the outer darkness? It shouldn’t. But in some American subcultures—Hollywood, academia, Democratic politics—it apparently does. You may favor raising taxes on the rich, increasing support for the poor, nurturing the planet, and repealing Section 14(b) of the Taft-Hartley Act, but if you don’t support gay marriage, you’re out of the club.
There are those who would have you think that gays and liberals are conducting some sort of jihad against organized Christianity and that gay marriage is one of the battlefields. That is a tremendous exaggeration. But it’s not a complete fantasy. And for every mouth that opens, a dozen stay clamped shut. In the state of Washington, a florist refused to do the wedding of a long-time customer “because of my relationship with Jesus Christ.” Note that “long-time customer.” This woman had been happily selling flowers to the groom. She just didn’t want to be associated with the wedding. Now she is being sued by the state attorney general. DC Comics dropped writer Orson Scott Card’s planned Superman book when thousands signed a petition demanding it because of his many homophobic remarks.
Thought experiment: If you were up for tenure at a top university, or up for a starring role in a big movie, or running for office in large swaths of the country, would it hurt your chances more to announce that you are gay or to announce that you’ve become head of an anti-gay organization? The answer seems obvious. So the good guys have won. Why do they now want to become the bad guys?
I was talking over the weekend with an academic friend who said that everybody knows you had better keep your mouth shut if you oppose SSM and want tenure. No matter how much you know, and how good you are as a scholar and teacher, if you dissent on this issue, you get blackballed. I mentioned to a prominent (secular, liberal, pro-SSM friend) that this is increasingly the case in journalism, and he agreed that it is — and he noted wryly that those making these McCarthyite distinctions think they’re doing it for the sake of “diversity.”
The point is not that we shouldn’t have same-sex marriage because traditionalists will be blacklisted. The point is that this campaign is now and will increasingly be marked by a strong urge to demean its opponents and drive them from the public square. The same cruel and unjust treatment that the mainstream delivered to gays for so many years is now going to be delivered to traditionalists, all in the name of justice. You may think trads are wrong to argue against SSM, but increasingly, we see what is coming for us. Anderson told me on the phone last week that even if marriage traditionalists are doomed to lose — something he does not concede, by the way — we still have to keep pressing our argument, if only because demonstrating that we have a reasonable case for opposing SSM, even if it doesn’t ultimately persuade most people, is critical to winning a modicum of tolerance from the victors.
The book is called What Is Marriage?, by Sherif Girgis, Ryan T. Anderson, and Robert George. You should read it. It is not long. It is not religious. It is not anti-gay. It is the best secular case for keeping traditional marriage that’s available. You may not end up agreeing with the authors, but you will have had a real argument. People who say that there are no non-religious arguments against same-sex marriage are people who have not read Girgis, Anderson, and George. Last week, Anderson told me that when he goes to college campuses speaking about marriage, and gets into actual civil discussions about it (versus cable TV shoutfests), he finds that some of his opponents have their minds changed, or at least tell him that they hadn’t thought about these things before.
The arguments are out there. Whether or not anyone wants to hear them, that’s a different matter.