Tuesday, November 26, 2002
Stanley Kurtz has another really strong piece against gay marriage on NRO. It's getting harder and harder to argue with the guy. But I still think he's wrong, and I'm going to give it another whirl.
First, where we agree. We agree that the courts have no basis imposing gay marriage on any single state, much less on the country at large. That's a no-brainer. The Massachusetts case for gay marriage is actually a far stronger case against marriage at all. If there is a basis under equal protection for gays to marry, isn't there a basis for unmarrieds to have the same rights and privileges as marrieds? If gay marriage is constitutionally mandated, it would seem to me that marriage itself is unconstitutional. Which is patently absurd. This is a matter for legislatures to undertake. The Massachusetts legislature is pretty darned liberal. If they favor gay marriage, they should screw up their courage and vote for it.
I also agree that a pro-gay-marriage decision by the Massachusetts Supreme Court will lead to a huge pro-GOP backlash. I'm going to return to this point at the end; suffice it to say that I'm not sure the backlash will have quite the impact that Kurtz supposes.
What is interesting to me is Kurtz's core argument against gay marriage, to whit: that it will lead to the abolition of marriage itself. I don't think this has to be the case. Indeed, I think a case can be made that gay marriage could strengthen the institution of marriage. But this can only be the case if it is approached pro-actively and in the right spirit. And it can only be the case if simultaneous efforts are made to shore up the institution of marriage at its core.
Kurtz's core idea is that gay marriage would redefine marriage as an arrangement among any group of people who have an affective tie. But this is already the definition of marriage implicit in no-fault divorce laws. If marriage can be ended simply because the partners - or even one partner - wants out, then marriage is, objectively, an arrangement among individuals who have an affective tie. And if that is the case, it is indeed hard to argue why gay couples or groups of individuals should not have the same "rights" to such an arrangement as heterosexual couples.
But that is not what marriage is. Marriage is a covenant between two individuals and between those individuals and the society. It is a social institution that involves the entire community, and not just the individuals in question. As such, to allow it to be dissolved at will is a crime against the community.
If we can agree on this, we can disagree about the degree of importance of religious sanction, or of the complementarity of the sexes, to the nature of that institution, and, while disagreeing about these things, agree that until no-fault divorce is ended there will be no persuasive argument against gay marriage or any other extension of the privileges of marriage.
That's my position in a nutshell. Since that's my position, I reframe the gay marriage question as follows: the question is not whether gays have the right to have their unions recognized by the state as identical to traditional marriage, but whether such unions can be integrated into that traditional institution. I would argue that they can be. Further, I would argue that without an effort to do so on the part of conservatives, the traditional institution of marriage is going to come under greater and greater attack as an exclusionary and backward institution, and will ultimately be destroyed.
If gay marriage does not exist, then gay people have no model for how to be part of the social organism, as that is one of the functions of marriage. They will continue to love and be loved, but they will be unable to express that love in a socially affirming form. (Perhaps they are constitutionally incapable of doing so, though I don't know of any strong evidence either way on this matter. We all know lifelong gay partnerships and we all know what the typical sexual history of a gay man looks like; the one is encouraging in this regard, the other discouraging. In the end, the only way we will know is by giving them the opportunity and the responsibility that comes with it. Call me an optimist on this point.) Assuming they are not constitutionally incapable of the obligations of marriage - that is, to permanently (we hope) subsume themselves in an entity that is greater than either of them, and to fulfil the consequent obligations towards any offspring (natural or adopted) and towards the community as a whole - it is hard to see what the justification is for not giving them some basis for undertaking these obligations. Indeed, denying them this would seem likely to encourage the very social pathologies that form much of the basis of the case against gay marriage.
Obviously, a formal gay union cannot meet the religious and natural requirements for marriage. Gay relationships are not naturally procreative, do not express the complimentarity of the sexes (and their natural destiny to join in marriage), and have no historic religious sanction (in any religious tradition). Nonetheless, covenanted gay relationships could be accorded the status of marriage on the grounds that, in contemporary understanding, the individuals involved do not have the same "nature" as the heterosexual public. In general, the sexes are complimentary and their destiny is to join in marriage. That doesn't work for some people, however, and we don't know why. We can carve out an exception for these people. Historically, marriage has had religious sanction. However, this country has a long tradition of civil marriage and of accepting inter-religious unions. In general, marriage is partly about providing a stable social environment for procreation, and procreation is the normal way to form a family. However, we do countenance adoption as a legally sanctioned route to family formation, and some marriages are not procreative; moreover, we have a whole medical industry devoted to helping non-procreative couples conceive. Gay couples can be fitted into this scheme if their unions are undertaken in the covenantal spirit that is proper to marriage.
How, then, to keep out other unions once gays are "inside the tent"? How to keep, for example, polyamorous groups from claiming the rights and privileges of marriage? The simple answer is that the social organism cannot sustain such groups. And the reason why has to do with children.
Let us imagine a polyamorous group of ten individuals, all sexually involved with one another and raising their children in common. Now let us imagine that the group breaks up. What is to be done with the common children? I can think of only three possible outcomes. One, the children go with their natural mothers. (Or, I suppose, fathers, though this outcome seems highly unlikely.) Two, the children spend all their time shuttling between their ten parents, never living stably in one place. Three, the court grants full custody rights to whatever fraction of the original group is deemed to be the best environment for the children. In other words, acceptance of polyamory means either the abolition of fatherhood (in the end, mothers' rights trump), or the abolition of family (the court assigns children to their parents), or the abolition of childhood (children become tokens passed around for the amusement of their gaggle of parents, not individuals with rights and interests of their own). The case that Kurtz cites of the lesbian couple is a precedent for the first outcome: the natural mother, in that case, was deemed to be the only parent, her former partner having no formal status and the biological father being, presumably, confidential.
For practical reasons like these, I think there are only three models for the family that could be adopted as a universal norm: (1) a father-centered patriarchal model, consistent with either monogamy or polygamy, where wives and children are understood to be in some sense the husband's/father's property or dependency and where women have a lower legal and social status than men; (2) a covenant-based model where a man and woman join their destinies to create a family in the sight of G-d and their communities, and have joint responsibilities for each other and for any offspring; (3) a mother-centered model where fatherhood is abolished and the state has a substantial role in child-rearing and income redistribution. Gay people could be integrated into any of the three models: in the first case, by engaging in compulsory bi-sexuality (taking, for example, a wife for the sake of having children and a male lover for the sake of companionship); in the second, by treating covenanted gay couples as an exception to the norm of complementarity, but otherwise placing the same requirements on them and granting the same privileges; in the third, as individuals fleetingly attached to one or another partner like everyone else. That's why I say that gay marriage is not the issue: the state of heterosexual marriage is the issue.
Above all, what is pushing our society toward family model #3 is no-fault divorce. We already treat heterosexual marriage as a matter of whether the parties are "joined at the heart," as if the society at large was not party to their covenant and had no say in its continuance. And if that is what marriage is, then there is no good argument against gay marriage.
Ending no-fault divorce, not fighting gay marriage, should be the conservative crusade to protect the family. If that battle is not joined, gay marriage will be inevitable, and Kurtz is right about the consequences. If that battle is joined, and won, then I believe that formal gay unions - whether called marriage or called something else, but with not only all the rights and privileges but also all the obligations and restrictions of marriage - will be far easier to integrate into our social fabric than Kurtz fears. And further: so long as there is no institution of gay marriage, heterosexual marriage will continue to be diluted through domestic partnership legislation. I've blogged about this before. The main motivation for such legislation is the desire to give the "bennies" of marriage to gay couples, but of necessity (equal protection and all that) the legislation applies as well to cohabiting couples who are straight. The consequence is that the public recognition of marriage has been progressively diluted to the point where a large number of professional, middle-class people - I know quite a number myself - see nothing wrong with simply never getting married, and cohabiting and having children as it suits them. Rolling back domestic-partnership legislation will be impossible without some kind of legislation for gay unions, and so long as this legislation remains in place it clearly telegraphs that marriage is an exclusively private affair with no special privileges or obligations - precisely the situation that Kurtz is worried will obtain as a result of gay marriage.
One last point, about the politics of the issue. Kurtz compares gay marriage to abortion. Assuming he's right, odds are we will soon have gay marriage legalized all over the country and GOP majorities entrenched in Congress and many state legislatures wringing their hands about their inability to change the law. If Kurtz actually wants to change the law, he had better hope that gay marriage is more like busing or the death penalty, issues where the court was forced to reverse itself after the public showed its overwhelming opposition to court mandates and prohibitions. But I suspect gay marriage will be more like abortion than like busing or the death penalty, because the latter issues affected people directly, whereas gay marriage would directly affect almost nobody. Roe v. Wade has proved instrumental in building an emerging Republican majority in the country. But that majority has achieved next to nothing in its efforts to overturn Roe. Something to ponder before relishing the political impact of a pro-gay-marriage decision in Massachusetts.