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Unmade in New York
We were told that same-sex marriage was necessary for meeting couples’ concrete needs. Now, we’re told that that was all wrong.


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As they enacted legislation redefining marriage to accommodate same-sex partnerships in late June, New York lawmakers may have been ignoring some basic facts:

Not providing formal governmental recognition of two people’s relationship doesn’t amount to denigrating them. Male-female and same-sex unions may have inherently different structures, norms, and social roles and purposes. Imposing marital norms on same-sex unions, where they make less sense, may well be unfair. There are good reasons to keep marriage separate, in law and culture, from other romantic arrangements.

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Yet every one of these points had been made as recently as the day the bill passed. Not in National Review, but in the New York Times. Not by a traditional supporter of marriage, but by a liberal proponent of redefining it. Not by social conservatives—but by Katherine Franke, a lesbian left-winger who is director of the Center for Gender and Sexuality Law at Columbia Law School. In other words, these points are agreeable even to some who would trade the 2,300-year-old intellectual tradition originating with Plato and Aristotle for the 60-year-old liberationist ideology descended from Hefner and Kinsey.

Though they supported its passage, you see, Franke and her partner will not seek a marriage license under the new law. They fear that in practice it might force them to be legally married in order to hold on to shared employment benefits and social respectability. They want to keep their domestic partnership, which gives them “greater freedom” than “the one-size-fits-all rules of marriage”—the freedom to form relationships that “far exceed, and often improve on, the narrow, legal definition of marriage.”

Franke leaves out just how these relationships “far exceed” marriage, perhaps not trusting her readers to see them as improvements after all. But then the Times had already divulged the empirically supported “open secret” about how often partners in same-sex civil marriages expressly reject sexual exclusivity.

For years, we were told that same-sex marriage was necessary for meeting couples’ concrete needs. Then, that it could and should be used to make same-sex couples live by marital norms. More recently, that relationship recognition was necessary for equal personal dignity. Now Katherine Franke, on the day that same-sex marriage passes in New York, tells us that that was all wrong.

The latest canard is that the defeat of the conjugal conception of marriage is inevitable because there isn’t even an argument for it. But the core argument is simple, and pieces like Franke’s bolster it: As many liberals now concede and even embrace, redefining marriage leaves no principled reason—none at all—not to recognize relationships of every size and type. As normative features of marriage, permanence, exclusivity, and sexual complementarity are a package deal. The first two norms make sense—are intelligible as norms—only because of the link between marriage and procreation. The only question, increasingly, is whether the loss of these once-defining attributes of marriage is bad. For clearheaded and candid liberationists, it’s only just. (Think: Which argument for same-sex “marriage” wouldn’t easily extend to any relationship that someone, somewhere, finds most fulfilling? Non-discrimination among loving relationships? Non-stigmatization? It won’t hurt anyone else’s marriage?)



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