Our views about marriage are multifaceted, and the primary facets are two. On one hand, we think marriage has something to do with reproduction and its consequences; on the other, we think it has something to do with the experience of two people who are in love.
Opponents of same-sex marriage think the law should concern itself only with the first facet and must not define marriage other than in terms of its orientation toward procreation. I think the law has a legitimate interest in both facets and can reasonably address the public-policy considerations related to each.
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I will call that position “traditionalist” according to which legal recognition of marriage should be restricted to unions of a man and a woman. The traditionalist holds that there is a pre-legal fact as to what marriage is, namely “comprehensive union” of two persons, and that only a “reproductive unit” can be a comprehensive union, although marriage qua comprehensive union is intrinsically valuable whether or not a couple reproduce. I use terms of Sherif Girgis and Robert P. George, both of Princeton, and Ryan T. Anderson, editor of Public Discourse, in their Harvard Journal of Law and Public Policyarticle “What Is Marriage?” They say that to exist as a person involves a bodily dimension as well as cognitive, volitional, emotional, etc. ones, and that any union which is not bodily will by that omission fail to be comprehensive. What unites the organs of a single person’s body is their coordination toward achieving the biological purposes of the organism as a whole. When it comes to one such purpose — reproduction — the organism is naturally incomplete. Only a man and a woman, and not two persons of the same sex, are able to join their bodies in such a way as to achieve this purpose.
Coitus achieves bodily union, traditionalists say, whether or not the couple intend to reproduce or are capable of reproduction. It is because any instance of coitus belongs to the kind of act that is reproductively oriented that the relationships of infertile couples, but not those of same-sex couples, are potentially marital. Traditionalists also say that it would be practically difficult and/or wrongly intrusive for the state to assure itself that a couple are fertile before marrying them.
Why does the law concern itself with marriage at all? A conservative might feel special force in the question, for a conservative wants the state at a large remove from his life. The answer, as the editors of National Review have put it, is that the legal institution of marriage exists “to solve a problem that arises from sex between men and women but not from sex between partners of the same gender: what to do about its generativity.” Sociology demonstrates that children are better off when raised by their two biological parents than when raised by single, cohabiting, or stepparents, although no methodologically rigorous research compares the former condition with that of being raised by two parents of the same sex. The norms of marriage — monogamy, fidelity, and thereby permanence — help bring it about that as many children as possible grow up with their biological parents. Legally recognizing marriage puts the force of the law behind the norms. It once did so by criminalizing behavior at odds with them and imposing a barrier to separation in the form of divorce. Today it is more permissive of liberty (libertinism?) and divorce, but its very existence reinforces the norms by focusing the public mind on the connection between sex, procreation, and marriage.
If the law called same-sex unions “marriages,” it would obscure that connection and make the norms seem to have no purpose. Additionally, gay couples are statistically more likely to flout the norms than heterosexual ones, so we must worry that their inclusion would by example encourage rebellion (though neither Girgis et al. nor the NR editors rest their case on this latter argument).
Traditionalists see no injustice in excluding same-sex couples from the institution because to discriminate is to treat like cases differently, and same-sex couples, not being reproductive units, are unlike heterosexual ones. Same-sex couples are also mostly free to make whatever legal arrangements they wish concerning property, inheritance, medical care, etc. It is a hassle to make such arrangements piecemeal, and a same-sex couple is at greater risk not to have made them before times when they would be important, but some traditionalists meet this objection by endorsing civil unions.
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I will call that position “revisionist” according to which the law should be willing to marry same-sex couples. The form of revisionism I will present agrees with traditionalism that there are pre-legal facts about what marriage is, but differs in its account of what the facts are and why the law should care about them.
Marriage is a stamp of approval which societies place on a union endorsed, supported, and protected by that society. Gay marriage advocates know they don't have the approval of society, they just want the stamp, in hopes that approval will follow.
Governement should be powerless to lie, and should be powerless to engineer society.
If the only alternative were gay marriage, I would prefer that government get out of the marriage business altogether.
I'm sorry, but this lengthy article reads like the pseudo-intellectual garbage that gets published in self-proclaimed expert journals. The author needs to unlearn a writing style that is rewarded in academia, but is boring and elitist to the rest of us folks. He could have made his point in two pages.
In our constitutional republic, the people through their elected representatives define the terms of their societies. The US Constitution only places certain limits on that power. Equal protection does not limit the power to define a legal status any more than it limits the power of any State legislature to establish the statutory collective bargaining rights of its employees. This does permit us to make decisions that do not seem intellectually elegant to those who write for academic peer review rather than popular understanding.
Does an infertile couple discover they are infertile before or after they are married? Setting up an equivalence between an infertile couple and a gay one is the false choice: Even if the infertile couple discover they are infertile before they marry, that does not necessarily preclude they will ever have children. The gay couple ALWAYS know it is infertile and intentionally does so by entering a homosexual union.
Also, it seems gay marriage proponents always want to establish that it is the government that ordained marriage. It isn't for the union existed before there was a United States of America and is universally observed around the entire globe. It was never the government's to ordain, but it is the government's duty to protect it. In fact, the only marriage union that will be morally sanctioned by the government is gay marriage and then it will have to engage in the enforcement of it.
If marriage was just about love and companionship then it should be extended in all instances. I don't think that is what gay marriage supporters have in mind, however.
The issue of homosexual "marriage" is just a smokescreen. Most homosexuals are not interested in getting married to another homosexual, so the real issue is that once homosexual "marriage" is legal, they then can go about enforcing acceptance of the immoral acts of homosexuality, making it illegal and punishable to teach that homosexual acts are immoral and wrong. The Bible condemns homosexual acts, even using homosexual acts as a prime example of being so far away from God that He gives up on the determined sinner, letting them suffer their great consequences for rejecting God and wallowing in their favorite vice, (see Romans 1:26-32). This is an issue for Christian Bible-believers because, for the first time in history, a group of people are turning their favorite sin into their main identity, by choice, thus attempting to sodomize the laws and morals of the citizens of the USA. This is a problem for the USA because it will hasten the self-destruction of our society and everybody will suffer the self-destructive consequences of the homosexual mindset. Remember the Bible story of Lot, who once was as wealthy as his Uncle Abraham, until he chose to live among the Sodomites, which eventually took away everything he had. We cannot be friends with wickedness without suffering the consequences.
I'm glad to see a response is forthcoming, but it is surreal -- it is absolutely incomprehensible to me -- that National Review would provide so much space to an assault on the bedrock institution of society.
Steorts writes his tendentious article, and we find a response in a subsequent letters page, followed by Steorts' reply. A full-length response is published in another issue, again followed by a reply by Steorts.
Will tomorrow's reply be followed by another comment by Steorts? Is he to be given the last word on the issue of marriage?
Is National Review his personal hobby horse, or does it still strive to be the flagship magazine of political conservativism? If his views are given so much air because he's the managing editor, can't the magazine find someone else to fill that role?
There are times where NR seems determined to alienate its core readers. I'm reminded of Conquest's Second Law, which I first discovered on this very site and which has been repeated here more than once.
"The behavior of an organization can best be predicted by assuming it to be controlled by a secret cabal of its enemies."
I hate that NR sometimes seems not to be an exception to that rule.
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It would be bad enough for NR to publish so many thousands of words to undermine the traditional understanding of marriage, if the position weren't also so poorly argued.
Steorts argues that the state should recognize "maximal experiential unions" without explaining why.
He argues that such unions must be monogamous, but one can easily reply that he is imposing his own vision on what a "maximal experiential union" must be. Who in the world is he to say with authority that, in cases of polygamy, "at least one party holds part of himself in reserve for another no matter whom he is with just now, and because he might give himself more totally to anyone, his union with each is less than maximal." Who is he to say that man is incapable of giving himself totally to more than one person?
(And if he argues that only one relationship can be maximal, why does hold true only for relationships in parallel and not in series? His position ought to be that this union ought to be recognized once for each person, for all time, with no option for a second such recognition for widows or divorcees.)
Steorts writes, "maximal experiential unions should be relationships of peers whose bodies/minds are complementary rather than overlapping."
Okay, but it seems to me that -- until very recently, under the fog of post-modern moral relativism -- all of civilization has recognized the complementary nature of the traditional definition of marriage.
A man and a woman are complementary in ways that two men are not, and in ways that two women are not.
Two reasons that this particular relationship should be given a special endorsement and sanction relate to children. Only the relationship between a man and a woman naturally results in childbirth; and only such a relationship can provide a child with a father and a mother.
As Robert George makes clear, the question comes down to: what is marriage. Up to recently, it was universally recognized that it only included a man and a women. The writer posits that the only reason that it was limited to a man and a women was that they had the possibility of having children,and since now we know better scientifically why certain men and women cannot have children and we still let them get married we should no longer limit marriage to a man and a women.
Okay, so the writer is now required to answer Professor George's question and his answer as I understand is as follows:any 2 humans who form a "maximal experiential union." Limiting it to 2 is because if there is more than 2 they are "holding something back"; and it presumably has to be adult, cognizant humans because-well the writer doesn't say- but presumably because you need informed consent to form a "maximal experiential union". "Maximal experiential union" is not defined but presumably all the parties have to do is say the magic words. Then they are legally "married" and the have the same legal rights as married people do now. Oh, and if they acquire kids it is harder for them to break up this "marriage" than it would be if they didn't.
"Our views about marriage are multifaceted, and the primary facets are two. On one hand, we think marriage has something to do with reproduction and its consequences; on the other, we think it has something to do with the experience of two people who are in love."
This simply isn't true. My nontheological reasons are about society and the simple purpose of marriage: to protect women and children. None of those are necessary in a homosexual bond.
Why does government need to regulate who gets married at all. I argue that marriages should only be religious, and if you have a religious authority willing to marry you, then go for it.
The civil law portions of marriage can be covered with contract and estate law.
Any place where the government needs to ask if you are married ( like tax forms) is not a key part of what they need to know. I argue that ALL marriage status to the government should be something like " Don't ask, Don't tell"
We need to radically simplify the scope of government manages. Marriage is an area, where they add no value and only intrude.
When I was younger, a gay marriage was a marriage between a male and female that was filled with gaiety. Now, the term means something entirely different. If Mr.Steorts wants homosexuals to be allowed to "marry" and the term 'civil union' is not good enough for him, let me suggest the term 'homosexually married' be used as Mr. Steorts wants, and we reserve the term 'reproductively married' for a marriage between a male and female.
"On one hand, we think marriage has something to do with reproduction and its consequences; on the other, we think it has something to do with the experience of two people who are in love."
Unfortunately, his premise is incorrect, which more or less invalidates the balance of the article. This is the classic straw man that advocates of same-sex marriage have been arguing against for ten years now.
The simple fact is that marriage is not about reproduction, or about romantic love. It is about gender. Gender is not an incidental fact that has become associated with marriage by way of reproduction. Gender is what marriage is. Marriage is the uniting of the genders, no more, and no less, which is why marriages with both genders included and no children are still valid.
(From a theological perspective, note Genesis 2 and Matthew 19, where gender is central, but reproduction and romantic love are conspicuous by their absence; while these are certainly not accepted as binding by a great many people, they clearly demonstrate that marriage was understood in antiquity in terms of gender, not in terms of reproduction or romantic love.)
The fight against traditional marriage (and it is a fight against it; assertions that advocates of same-sex marriage are interested in preserving marriage ring hollow, as many of those very same activists were fighting against marriage two and three decades ago) is a fight against gender, and against social recognition of the differences between the genders.
Why do homosexuals want to be "married" rather than have civil unions? Tax benefits, insurance benefits, inheritance benefits, etc. In other words, financial benefits.
Why does society (including employers, insurers, and the government) confer these financial benefits on married people? To provide incentives for "family" formation where "family" means husband, wife, and children.
If these incentives are equally available to homosexual unions — which by definition cannot result in reproduction — then they lose their incentive value and might as well be eliminated for all unions, reproductive or homosexual.
I have yet to hear a coherent argument against gay marriage. The phrase "assault on traditional marriage" is particularly troubling. How on earth are the choices someone else makes going to harm some committed straight peoples' own bond? There is an assault on marriage in our culture, but it's not from people who wish to get married but are barred from doing so.
A previous poster had a fine idea: the government could just recognize civil unions and marriage could be a religious term, if people are so bent out of shape about the words.
Finally, the argument that marriage has been a certain way for thousands of years is not in and of itself worth anything. For thousands of years humans have enslaved each other and believed in the divine right of monarchs - should we go back to slavery and kings?
Wow, side note - NRO won't let me write "h*teros*xual"
In the choice between the two views of marriage, one side for reproduction and the other for romantic love, the first lays claim to a much older title. As long as people have been forming social groups, since long before recorded history, marriage was born of the necessity to establish the legitimacy of children and to provide a stable environment to raise them. On the other hand, our contemporary ideas about romantic love are relatively new in terms of human history. The idea that love should be the sole determinant for marriage was not even prevalent a few generations ago. For confirmation, just start with almost any nineteenth century novel. I'm afraid that as conservatives, we are compelled to endorse the older interpretation.
"Out of every hundred new ideas ninety-nine or more will probably be inferior to the traditional responses which they propose to replace. No one man, however brilliant or well-informed, can come in one lifetime to such fullness of understanding as to safely judge and dismiss the customs or institutions of his society, for those are the wisdom of generations after centuries of experiment in the laboratory of history."
Mr. Steorts would be wise to spend his time mastering the wisdom contained in the above quote, instead of creating fallacious arguments in favor of calling apples bananas.
@Lawrence: "A man and a woman are complementary in ways that two men are not, and in ways that two women are not."
I agree, and that seems to be the foundation of marriage: to provide a social institution that closely binds men and women together, and where strengths and weaknesses are offset by complementary traits in the partner.
The problem with the progressive view is that it has accepted the doctrine that men and women are effectively the same and happen to differ only in superficial biology - an article of faith unsupported by fact, and a growing mountain of hard scientific evidence. The author has implicitly accepted this view, as demonstrated by his parting snipe at "judgement" based "on the structure of . . . genitals." Anyone with such a profoundly and deliberately ignorant view of the differences between the genders should not be allowed anywhere near the subject of family relationships.
@Misterright “The civil law portions of marriage can be covered with contract and estate law.”
Your general libertarian argument appeals to me, but I wonder if this part is practical (Maybe it is, I'm not sure)? Wouldn’t third parties and Governments that require marital status for certain conferred rights and obligations face high compliance costs if they had to delve into the particularities of contract and estate law? What if instead Marriages were religious and the State provided a unified “Civil Union” that third parties could rely on?
In some ways, the entire Same [s]ex marriage debate stems from the unfortunate power that Government has to define Marriage is, rather than with civil institutions, where that power has traditionally resided. If the Roman Catholic Church, Orthodox Jews and Mormons defined Marriage as between a man and a woman, and Episcopalians and Reform Jews defined Marriage as between two people, I’m not sure that would be worse for “traditional” Marriage, children and society than having the States define marriage, no matter which way the States choose to do so.
