Left & Right of Gay Marriage

My NSU colleague (and SDP colleague) Professor Jon Schaff has a piece in the American News on gay marriage.  He will probably post it here, as he usually does, but let me spoil part of the surprise: he presents no strong argument in favor of it.  His column is clever and guarded, so much so that one can not exactly say he is against it either.  But the column surely looks like a list of reservations. 

As such it is very good, and I think I agree with everything he says.  Consider this:

Is there a rational defense of traditional marriage? Marriage teaches us to love someone who is truly an other, as someone of the opposite sex is of a different sexual nature. Further, traditional marriage, open to children, is obviously necessary for the continuation of a civilization. Finally, marriage and family are the best institutions to raise responsible citizens.

Same-sex marriage will perpetuate disconnect between marriage and children. Forty percent of all children in America are born outside of marriage. Children born in this situation are statistically more likely to be poor, struggle in school, get involved in drugs and crime, and suffer a number of other pathologies. Having a mother and a father in the home divides the work of parenthood and brings complementary gifts to raising children. When society endorses a view of marriage as self-fulfillment rather than self-giving, these familial habits get that much weaker.

As a defense of traditional marriage, this is very good.  It represents the best side of traditional conservatism. 

The trouble is, it doesn't add up to an argument against gay marriage.  To be sure, traditional marriage pairs the only two kind of human beings who are biologically distinct, and it exists because, as Aristotle pointed out, men don't know who their children are.  Marriage provides assurances to the male that these children are his children, thus encouraging him to invest in them.  It provides both a mother and a father as influences for sons and daughters.  But many traditional institutions get adapted to new purposes without the old ones being undermined.  The use of Black churches as rallying points in the Civil Rights Movement comes to mind. 

I think Professor Schaff is right on target when he criticizes "a view of marriage as self-fulfillment rather than self-giving," but it is not obvious to me why homosexual marriage necessarily involves or promotes such a view.  Marriage is about mutual obligations more than self-fulfillment or rights.  Anything short of that is not marriage, but something else.  It is an unfortunate feature of the campaign for gay marriage that it has been almost totally oblivious to this fact. 

But I see no reason why gay marriage cannot be defended on traditional grounds.  Gay thinkers like Andrew Sullivan have argued (if I remember correctly) that marriage would promote more responsible sexual behavior among gay males.   A "monogamous" same sex marriage would be a bulwark against veneral diseases just as monogamous heterosexual marriage is, when the partners honor one another with a sacrifice of fidelity. 

I am not here arguing with Professor Schaff, as he takes no explicit position against gay marriage in his essay, but I think that his arguments represent the best grounds that conservatism (unassisted by Divine law) has for a rejection of gay marriage, and it seems to me that they are weak for that purpose. 

              * * *

The arguments for gay marriage are, in general, similarly wanting.  As I have argued many times here, restrictions on marriage to heterosexual relationships do not violate equal protection for they are generally applicable.  A homosexual man cannot marry another man, but neither can a non-homosexual man. 

My cherished interlocutor, A.I., makes a good point in a comment that I believe I never got around to replying to.  But I remember it: he asked about poll taxes.  Poll taxes were fees that a person had to pay in order to vote.  These were generally applicable; does that mean they are okay?  No, I reply, it just means that whatever is wrong with them, it can't be selective application.  Polls taxes were specifically designed to keep Black voters, who were disproportionately poor, from voting.  Like laws against miscegenation, the purpose of poll taxes was to keep a certain subpopulation "discrete and insular."  On in the words of the majority opinion in Plessy, to keep the races from "commingling." 

By contrast, traditional restrictions on marriage cannot function to keep the homosexual population more isolated.  If anything, such restrictions invite commingling.  Similarly, such restrictions cannot be a violation of the right to marry whomever one wants to, since no such right exists or should exist.  Lots of restrictions on marriage are valid.  One cannot marry one's sister, or someone under age, or a third person, or a horse.  Apart from racial restrictions, the Constitution offers no guidelines as to which restrictions are valid and so the question is political rather than legal.  Courts that have ruled otherwise are merely writing their own political opinions into the law. 

With no decisive arguments for or against gay marriage, I suspect that its eventual legalization is inevitable.  But it seems to me that the gay rights movement and conservatives might find common ground on this one.  Both have an interest in seeing that marriage means "self-giving" more than "self-fulfillment."  I have little hope for this. 

In the first place, it would split both sides of the chamber.  Religiously motivated conservatives would never forgive more libertarian minded conservatives (like myself) for giving up, and a large part of the gay activist community is not the least bit interested in any sort of marriage that implies restrictions on behavior.  Moreover, both the left and the right are probably less interested in the issue than they are in disappointing the other side.  In the current climate, that means that conservatives lose twice.  Gay marriage becomes a reality, and as Professor Schaff predicts, the institution of marriage is futher diluted. 

Comments

[Travis Dahle]

Dr. Blanchard,

I have several problems with your argument (and Prof. Schaff's) regarding the "rational defense of traditional marriage." Mostly I disagree with Professor Schaff's first couple of points.

He states "Marriage teaches us to love someone who is truly an other." What? Marriage doesn't 'teach' us this. Marriage is a symbol that you are promising to be with that person, regardless of how good or how bad things get in the future. It is binding yourself to someone you love and want to spend the rest of your life with. Some people will argue that people should be allowed to marry multiple people or animals if they love them then. This is the same type of statements that were used to argue against inter-racial marriage. The laws against marrying several people or marrying an animal have a legitimate purpose - laws against same-sex marriage do not, just like laws against inter-racial marriage did not.

Second, he states that "Same-Sex marriage will perpetuate disconnect between marriage and children." This is probably the worst argument against gay marriage out there. First off, how is a gay couple getting married going to affect the way my wife and I raise our children or any one who has kids? It doesn't! Professor Schaff tries to use statistics on how children born out of wedlock are poorer, get involved in drugs, etc. Again, how is this an argument against gay marriage? He is trying to say that if a gay couple has kids, they are going to be poorer, commit more crimes and get into drugs. To imply this is a slap in the face of loving parents who happen to be homosexual. I have friends who are homosexual who are not married (because they are being denied that right) but are living together, raising kids and loving them and raising them to be productive members of society. I also teach students who were raised by heterosexual couples or single parents who are involved in drugs, have committed crimes, etc. Being homosexual or heterosexual does not lead to a child become more involved in crime - having TWO parents instead of ONE, according to Professor Schaff is the key - so isn't that an argument for gay marriage - to have two loving parents, which gay marriage would provide.

I'm glad that you agree that it doesn't add up to an argument against gay marriage. However, I would also argue that the obligation of marriage is recognized by most homosexual couples that are in long-term relationships. Unfortunately, those couples don't have the same rights as heterosexual couples do to things like medical decisions and visitations. Why should we tell someone who is dedicated to another and has that obligation to another person that they can't legally have those rights?

Basically I think this: why would someone care about a homo-sexual couple getting married? It doesn't affect my life or how I will raise my kids. It doesn't erode the marriage that I am in and I am sure it doesn't affect your marriage Dr. Blanchard. I am sure that the couple's getting married around the U.S. are not affecting anyone's marriage that reads this blog.

[KB]

Travis:

Good to hear from you. You get the details of the argument right, in my opinion, but miss the point. The argument for gay marriage typically is weighted all in favor of self-fulfillment and rights claims. It is frequently presented as a claim for a right to marry whomever one wants. That sort of argument does undermine marriage, which is all about mutual obligations.

To see the problem, consider that in the middle of the last century, the U.S. liberalized divorce for the sake of more freedom of choice. Maybe that was the right call and there is probably no going back, but it did have a lot of very bad consequences. It didn't affect my parent's marriage (more than fifty years) or mine (more than 25), but it did lead to a big rise in the number of fatherless families. That was not social progress. Sometimes, perhaps, we have to think about other people and not just about ourselves.

I am not opposed to gay marriage, but I think Professor Schaff is quite right to insist that the function of marriage is being lost in the rush to enact it.

[cls]

You wrote: " The arguments for gay marriage are, in general, similarly wanting. As I have argued many times here, restrictions on marriage to heterosexual relationships do not violate equal protection for they are generally applicable. A homosexual man cannot marry another man, but neither can a non-homosexual man. "

That is a rather strange view. Would a state law forbidding anyone to be Hindu not be equally applicable to all people: Hindu and Christian alike? Would it also not be terrible unjust and a violation of rights? Equally applicable is not what is meant by equal rights. This sort of thinking would justify almost any state intervention. You present the concept of equal applicability as if it is some restriction on overreaching government. Yet, it is anything but. It is a permit to do almost anything provided you word it so that it applies to everyone. A law forbidding Republicans to run for office merely need be worded so that it forbids all citizens to run as Republicans. It is applied equally to Republicans, Democrats and Independents alike. But of course it only impacts Republicans in any meaningful sense. To pretend the law restricts straight men from marrying men (something they have no wish to do) is equally as absurd.

[A.I.]

KB, lets try substituting some words in your response to my poll tax argument. Polls taxes ("defense of marriage" laws) were (are) specifically designed to keep Black voters (homosexuals), who were (are) disproportionately poor (maligned as being perverted), from voting (marrying). Like laws against miscegenation, the purpose of poll taxes (effect of hetero-sexual only marriage law) was (is) to keep a certain subpopulation "discrete and insular" (from experiencing the full rights and responsibilities of state-ratified marriage and thus offending the sensibilities of some members of society). On in the words of the majority opinion in Plessy (of social conservatives), to keep the races (homosexuals) from "commingling" (cohabitating with state blessing).

Of course "defense of marriage" laws and general marriage laws are two different things--the first being specific in intent to limit those that might get "married" to heterosexuals. But, the effect of marriage laws in general that do not recognize same-sex unions are as discriminatory as laws forbidding them in that neither support the option. And as cls points out above, allowing homosexual people to enter a relationship they have no desire to be part of is hardly equal to the rights accorded heterosexuals.

Which brings us to another point. You and JS both make much of a sense that those campaigning for recognition of same-sex marriage have "a view of marriage as self-fulfillment rather than self-giving,"... Perhaps it appears that way because the self-giving portion of the relationship is already present without state sanction and quite aside from the impetus for the campaign. As for self-fulfillment, is campaigning for things like visitation rights, parental rights and survivor rights so very self-serving or is it simply a plea for human dignity that now, in most states, is reserved for heterosexual couples?

Overall, I found JS's post offensive and self pitying. As you noted, the arguments against same-sex marriage were weak. Worse, they were dismissive and insulting to society in that arguments in favor were portrayed as "hip" as if to say a shallow, anything goes, self gratifying majority is signing off on a practice they have not really thought through and only intellectual moralists like himself realize the destructive potential of these changes. And the final paragraph wreaked of self pity as poor Christian conservatives were portrayed as being persecuted by that majority. Yet, there was nary a mention of the persecution homosexuals have suffered throughout most of history.

[Jason]

cls:

A law forbiding anybody being a Hindu, or practicing Hinduisum, would clearly violate the Establishment Clause of the 1st Amendment. I think you are missing Dr. Blanchard's point. Recent court decisions have used the Equal Protection Clause of the 14th amendment, as their basis to remove laws that ban gay marriage. Dr. Blanchard finds this argument dubious, I would tend to agree with him, cleary A.I. does not.

I would tend to agree with Travis, that if Jim and Bob getting married weakens my marriage, the foundation of my marriage must not have been very solid. But advocates of gay marriage seem to be uncapable of making an argument that does not revolve around medical visitations, tax status etc. I think this weakens their argument. Those of us, including me, in a traditional marriage, did not marry for those reasons. While I was exchanging vows with my wife, the furthest thing from my mind was lower insurance premiums. In my opinion, homo-sexuals should stick to arguments that everybody can relate to: spending a life together with somebody they love, through adoption raising a family. But why come up with convincing arguments, when you can let the court do your work for you?

[A.I.]

One other note. In decrying the "self-fulfilling" desires of gay marriage proponents, JS sited this: As Patrick Deneen puts it, “Begin with a belief in human beings as naturally autonomous and free, and after a time...that belief will act as a corrosive agent that will destroy all forms of culturally transmitted and embedded restraints.”

Wow, what does that say about the Declaration of Independence citation of man's "inalienable rights" to "life, liberty and the pursuit of happiness?" Those founding father must have been crazy to think a country could survive based on such overt heresy.

[A.I.]

Why, Jason, should society make "spending a life together with somebody they love, through adoption raising a family" more difficult for a homosexual couple than for a heterosexual couple? As I attempted to say earlier, gay people can enter loving relationships and practice fidelity without state sanction and they can declare their intent before family, friends and God if they choose. So the argument for state sanction is for rather practical matters like visitation rights. But these can also be matters of the heart.

I do not know if you and your wife have children. If you do, consider that if not for marriage, you would have no parental right to your children should your wife die. Can you imagine the pain the non-custodial partner in a same-sex relationship would feel if the other partner's death separated them from a child they were raising together? The "self-fulfilling" rights gay couples seek through state sanctioned marriage go way beyond lowering insurance premiums.

[KB]

At the risk of self-congratulations, I have to say that the discussion threads on SDP (since I opened my blog up for comments) have been among the best I have seen on a political blog. This is serious argument, civil and thoughtful. Thanks to all, and especially to A.I. and Miranda for patiently trying to correct me.

A.I. keeps insisting that other-sex marriage restrictions are discriminatory. But this looks to me like a logical point, and one that obviously goes against his claim. Let me state is as plainly as I can: for something to be corrosive, it must involve corrosion; for something to be discriminatory, it must discriminate. Discrimination logically requires that one identify and distinguish between groups of people so that one can treat them different. A.I. says:

"Polls taxes ("defense of marriage" laws) were (are) specifically designed to keep Black voters (homosexuals), who were (are) disproportionately poor (maligned as being perverted), from voting (marrying)." But that confirms rather than refutes my point. Blacks weren't allowed to vote; White people were. Both homosexuals are allowed to marry, just like heterosexuals (and all other sexuals). And they are allowed to marry under exactly the same set of restrictions. You can't be guilty of discrimination without discriminating.

Likewise cls proves my point. "Would a state law forbidding anyone to be Hindu not be equally applicable to all people: Hindu and Christian alike? Would it also not be terrible unjust and a violation of rights? Equally applicable is not what is meant by equal rights." To which I reply: yes, yes, and no. A law forbidding anyone to become a Hindu or practice Hinduism would not violate the equal protection clause. It would violate the free exercise clause of the First Amendment. It would be a violation of both constitutional and natural rights, because it would violate everyone's rights. I have no inclination to practice Hinduism (I practice Zen Buddhism and I attend a Methodist Church), but I think I have the right to practice it if I choose, and taking that right away would be an injury regardless of my inclinations. Thanks for the post, cls.

The difference between the two examples, of course, is that an anti-Hindu law runs afoul of other parts of the Constitution, but it's not clear that other-sex restrictions on marriage run afoul of anything in the Constitution. I say this not because I am opposed to gay marriage. I am in favor of it. I just don't think that something is constitutionally required just because I like it.

[KB]

ps. Thanks to Jason too, for coming to my defense.

[Jason]

A.I.

I don't think society should make it more difficult for homesexuals to marry. My concern is the means it which gay marriage is granted. I think gay marriage should be decided by the people, legislature or direct, not courts. To me the ends do not justify the means.

Which brings me to winning the argument. I think we can all agree that those against gay marriage for religious reasons will never change their mind. As stated in my previous comment, the argument for gay marriage always seems to revolve around medical visitation and the things of that sort. I think, for people on the fence, this rubs them the wrong way. The cause would be better served, I think, if it was based on more traditional reasons.

Perhaps the better solution would be if government did not have a stake in any kind of marriage. One of the reasons Professor Schaff seems to think that traditonal marriage is more just because it can create new life. But what about those heterosexual marriages that are unable to conceive? Is their marriage worth less than those more fertile?

[A.I.]

Actually Ken, any black who could and would pay the poll tax could vote. And any homosexual person who is willing to spend their life with someone they have no sexual desire for is free to marry. The first situation we agree was discriminatory because a disproportionate number of blacks could not afford the poll tax. Yet I am to believe the second is not discriminatory when every homosexual is told they may only enter a marriage bereft of sexual desire. As a former President was famous for saying, I'm not gonna do it.

Nor am I going to buy into a bunch of hooey about desire being inconsequential to the argument because it is "self-fulfilling". Pretty much anyone whose marriage has lasted past the honeymoon knows there is plenty of self-giving involved in their relationship. They also know there must be give and take for the relationship to endure meaning both partners must experience self-fulfillment too.

Jason, while you do not want society to make it more difficult for homosexuals to marry, you do wish to make changing marriage law more difficult than simply declaring laws against or non-inclusive of same-sex marriage unconstitutional. My apologies for implying you were simply against gay marriage.

You are quite correct in noting I am less concerned about means for changing marriage law. I applaud the state legislatures that have voted to allow same-sex marriage and agree this is the least controversial way of changing law. I also believe a law that discriminates against a social group for no justifiable reason defies the U.S. Constitutional and many state constitutions. Marriage laws often meet that criteria and when they do, I see no legal reason state courts or the U.S. Supreme Court should not overturn them. Yourself and KB would likely term that "legislating from the bench". I simply see it as upholding constitutional law. So be it.

[Phil]

"I see no legal reason state courts or the U.S. Supreme Court should not overturn them."

Except that O'Conner in her support for overturning sodomy laws in Lawrence v. Texas (and anticipating this very statement) noted that laws protecting traditional marriage would pass rational basis scrutiny. Meaning, that there are probable good legal arguments that could be made for not overturning them. Other than not bowing to the wave of enforced political correctness. Of course, in the gay activist's mind no logical reason in this plane of existence could ever be "good".

[Phil]

"I see no legal reason state courts or the U.S. Supreme Court should not overturn them."

Except that O'Conner in her support for overturning sodomy laws in Lawrence v. Texas (and anticipating this very statement) noted that laws protecting traditional marriage would pass rational basis scrutiny. Meaning, that there are probable good legal arguments that could be made for not overturning them. Other than not bowing to the wave of enforced political correctness. Of course, in the gay activist's mind no logical reason in this plane of existence could ever be "good".

[A.I.]

Phil, to be sure, what I "see" is limited by my experience and familiarity with what arguments O'Conner might be referring to. I did not mean to say courts deciding in favor of gay-marriage is a sure thing. What I did mean is that I am comfortable with either court of legislative action that expands the definition of marriage to include gay and lesbian couples while others advocate only the legislative. Put another way, I am saying arguments about process are less important than the goal.

I do take issue with trivialization of this issue as a "bow to political correctness." We are talking about fellow human beings that arguably constitute a minority denied its inalienable rights under law resulting in human suffering that serves no purpose. That in the minds of most I think, is not what America is about.

No one seriously contemplating this issue gives a rip about political correctness. Their concern is promoting human dignity derived from equal treatment under law--serious business indeed.

[Travis Dahle]

I agree with Dr. Blanchard that this has been some great debate on the comments part of this post. I am so used to hearing the same bad arguments yelled at each other instead of intelligent discussion posted here that it surprised me.

I do agree with you Dr. Blanchard that there were social costs to the liberalized divorces for personal choice. That did lead to a lot more divorces and more single-parent families. However, I don't see how that would impact gay marriage. Because if they are going to have kids, I would bet that most people will stay together. Heterosexual couples don't have to plan to have kids - its safe to say that a lot of them are unplanned and sometimes before marriage. A homosexual couple has to either adopt or be artificially inseminated. Needless to say, those two options take a lot more time than one night in bed. That is why I have never agreed with that argument against gay marriage, because I feel it won't affect how many children are raised with one parent.