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"Listening
Attentively," the last entry in my exchange with Jonathan
Rauch on gay marriage, I pointed to a core contradiction in Rauch's
position. On the one hand, Rauch puts forward a "conservative"
case for gay marriage, arguing that marriage will domesticate gay
couples, and can be proven to do so through experimental adoption
in a few key states. At the same time, Rauch puts forward a rights-based
case for gay marriage. That rights-based case, I claimed, leaves
no real space to judge an experiment in gay marriage a failure,
and will surely lead to legalized "polyamory" (group marriage).
In effect, underneath his "conservative" and "federalist"
case for gay marriage, Rauch is offering a radical, rights-based
case for replacing marriage with a system of infinitely flexible
relationship contracts.
Nothing in
Rauch's reply, "Marriage
for All," allays this concern. On the contrary, despite
his being careful not to overtly rest his case on an infinitely
flexible right to redefine marriage, Rauch continually invokes just
such a "right." According to Rauch, his argument is not
about rights, but about a "presumption." In the absence
of certainty about the socially disruptive effects of a change,
there ought to be a presumption that everyone should have a chance
to participate in marriage. Well, everyone does have a right to
participate in marriage — as it is currently defined. So what Rauch
really means is that there ought to be a presumption that everyone
may redefine marriage so as to insure participation on their own
terms. And what is the basis of that presumption? Rauch doesn't
say, but it is obviously the belief that everyone has an equal right
to rework marriage to suit his tastes. In effect, a radical rights-based
argument is the hidden grounding for Rauch's doctrine of "presumption."
For example,
Rauch claims that, because a gay man is "not situated similarly"
to a straight man, it is unfair to deny him the "right"
to marry someone who shares his distinctive situation. But marriage
as it exists now is based on a judgment that a compelling social
interest justifies special support and encouragement for people
who inhabit a very particular "situation" — the heterosexual
couple. Society judges that people in this situation are particularly
well suited to create a stable family environment conducive to the
rearing of children. A "conservative" case for gay marriage
would have to establish that homosexual couples are equally likely
to create such a socially beneficial environment, and also that
this innovation would not undermine the stability of the already
existing heterosexual family system. Yet Rauch's interpretation
of liberalism casts aside his avowed concern for these issues and
simply insists that we must reshape the "right" to marriage
to fit any social or sexual "situation."
Despite his
attempts to show that this interpretation of liberalism would disallow
group marriage, it's easy to see how a "polyamorist" could
make exactly the same argument as Rauch. (For more on polyamory,
see my article in the September 2000 issue of Commentary.)
Polyamorists rest their case for group marriage on their "sexual
orientation." They claim that a significant percentage of humanity
is born "polyamorous" — i.e. with a special need and desire
to have multiple and simultaneous sexual partnerships. (They point
to the persistent and widespread existence of polygamy throughout
world history as proof.) So after the legalization of gay marriage,
what's to stop a polyamorist from saying that it is unfair to expect
him to marry only one woman. After all, given his polyamorous sexual
orientation, he is "situated differently" than either
a couple-oriented heterosexual or a couple-oriented homosexual.
Should not marriage therefore be redefined in order to fit his "situation,"
thus granting him the very same "right" that pair-oriented
heterosexuals and homosexuals now enjoy? You may be certain that
sometime after gay marriage is legalized, polyamorists will offer
just such an argument (and others as well).
In an attempt
to show why gay marriage will not lead to polygamy, Rauch moves
away from his hidden rights-based argument and back to a claim about
social impact. He notes that in polygamous societies, relatively
few men marry many women, thus leaving a restless group of undomesticated
low-status men to form a trouble-prone underclass. But this objection
to polygamy does not apply to modern polyamory, which allows group
marriage in any combination of gender and number. Indeed, April
Divilbiss, whose court case polyamorists hope might provide a first
glimmer of legal recognition for their right to group marriage,
is not one of many wives, but a woman living with two "husbands."
So it can by no means be shown that legalized polyamory would create
the problem of surplus unmarried men described by Rauch.
Why then, cannot
the polyamorists, following Rauch, say that since "nobody really
knows what will happen" if polyamory is legalized, the "presumption"
ought to be that polyamorists can marry on their own terms? In other
words, exactly as I claimed in "Listening Attentively,"
Rauch's talk of "presumptions" and "differential
situations" amounts to an infinitely flexible right to redefine
marriage — a "right" that can only lead to legalized polyamory,
and a "right" that is sure to be invoked, even if a "federalist"
experiment in gay marriage empirically fails.
It is important
to note in this connection that Rauch has not commented upon my
criticisms of the Vermont supreme court's decision mandating gay
marriage or civil unions. If Rauch really rejects the rights-based
case for gay marriage, shouldn't he also reject the Vermont Supreme
Court's decision in Baker v. Vermont? That decision
was based on a vague "equal benefits" clause, rather than
on a compelling state interest in supporting a particular marital
form. Yet that equal-benefits clause was never taken by the framers
of Vermont's state constitution to be incompatible with the state's
ability to define, regulate, and support a "situationally"
particular form of marriage. Shouldn't anyone who prefers a "conservative"
case to a rights-based case for marriage disavow Baker v.
Vermont, the broad claims of which could clearly lead to
legalized group marriage?
Let us return
to the polyamorists for a moment and reflect upon the remarkable
fact that they exist as a public movement to begin with. In 1996,
when the prospect of legalized polygamy was raised in connection
with the congressional debate over gay marriage, the argument was
derided by proponents of gay marriage as ludicrous fear-mongering.
Is it not extraordinary that only a few years later the polyamorists
were openly organizing as a group and garnering national publicity?
It is likely that this is more than coincidence. The very fact that
arguments for gay marriage have been "in the air" has
helped give license for the polyamorists to organize their movement
for group marriage. I submit that, in the rise of the polyamorists,
we have already seen an important example of the "subversive"
cultural feedback effect of gay marriage on the culture of marriage
at large. With actual legalization of same-sex marriage, that effect
is sure to grow exponentially.
Rauch claims
that, by blocking gay marriage and giving rise to forms of "marriage
lite" in certain states, it is the Federal Marriage Amendment
that will actually bring about an infinitely flexible series of
relationship contracts. Yet whatever threat limited domestic partnership
arrangements pose, they would be far less disruptive than full-fledged
gay marriage and polyamory. It is by no means certain that such
limited domestic partnership arrangements will multiply to begin
with. If such arrangements do arise through democratic means — and
they may well — they can be restricted to couples not otherwise
eligible to marry, thus preventing the rise of a "marriage
lite" option for heterosexual couples. That such a provision
cannot be guaranteed in advance hardly justifies giving up and simply
authorizing the radical undermining of marriage that gay marriage
would represent. But of course, Rauch and I disagree in the first
place about whether gay marriage will undermine or strengthen marriage.
In reply to
my claim that despite Rauch's offer of an empirical and revocable
experiment in federalism, his argument not only offers no real grounds
on which the experiment could ever be called off, but in fact makes
revocation impossible, Rauch claims that what a couple of intellectuals
say doesn't really matter anyway. All that matters is what the people
of the state in question will say, many years from now. But this
draws an artificial distinction between the public debate that is
occurring now and the one that will occur later. Surely there must
be some relationship between the two. If we are persuaded in good
faith to adopt an experiment on the grounds that it is revocable,
yet a bar to revocation is hidden within the grounds for the experiment
itself, then the "experiment" is a sham. That is not a
legitimate basis upon which to achieve public agreement on a radical
and deeply controversial social reform.
Indeed, given
the entirely justified seriousness with which he takes his own role
in this debate, Rauch is far too dismissive of the role of intellectuals.
When I invoke the many gay intellectuals who claim that gay marriage
will subvert and even destroy the institution of marriage, I am
not simply arguing from authority. The widespread agreement about
the subversive cultural implications of gay marriage that I demonstrated
among gay intellectuals on all sides of this question is vital evidence
in this debate. That is because the effect of gay marriage depends
in great part upon the attitudes toward marriage of gays themselves.
If gays are looking to marry merely for the economic benefits and
the social affirmation of homosexuality, rather than to embrace
and adhere to the conventions of marriage itself, that gives us
vital information about the likely effects of same-sex marriage
on the larger institution. And in this case, as I showed in "Point
of No Return," sociological data on the attitudes of ordinary
gays tally's very well with the arguments of gay intellectuals.
Large numbers of gays look forward to gay marriage, more as a way
of subverting the conventions of marriage than as an incentive to
adopt them.
Rauch mentions
Michael Warner, a radical gay intellectual who opposes gay marriage
and worries that it will in fact domesticate gays. Interestingly,
even Warner, in a 2000 interview in The Chronicle of Higher Education,
acknowledged that gay marriage may well end up subverting marriage
rather than supporting it. Warner's fear was that the public arguments
for gay marriage were rights-based. He wants more foregrounding
of the "subversive" argument for gay marriage, as the
best way to insure that the reform will in fact undermine social
convention. That may be politically naive, but it shows that Warner
recognizes the potential for a subversive effect. And after gay
marriage is actually legalized, and gays no longer have to present
a moderate face in order to achieve it, the subversive argument
(which has never gone away) will emerge still more openly, and with
a vengeance.
Yes, this issue
has an inescapable element of tragedy about it. But the tragedy
is not of my making. As I explained in "Listening Attentively,"
the nature of the gay situation, regardless of what does or does
not happen with marriage, will always produce a significant degree
of alienation. The tragedy is also rooted in the fact that two important
needs are clashing here. On the one hand, we have the desire of
gays for greater social recognition. On the other hand, we have
the need to protect and support the vital and already greatly weakened
institution of marriage. Rauch says that if there is any reasonable
possibility that the tragic trade-off is imaginary, the need to
relieve the condition of gays obligates us to adopt same-sex marriage.
But can we not say with equal or greater justice that if there is
any reasonable prospect that the tragic trade-off is real, the need
to protect marriage obligates us to reject so radical and dangerous
a social experiment?
Jonathan Rauch
has pressed his case with intelligence, force, and gravity. He has
also been gracious to me, and for that I am extremely grateful.
There is no easy way in this matter, for any of us. Every option,
whatever it's benefits, is in some important measure unsatisfactory.
Any public stance inevitably places an advocate, of whatever position,
directly in the path of impassioned opponents, often attacking from
several directions at once. In some important sense, every one of
the several positions in this debate puts forward insights and interests
that deserve acknowledgment and protection. So the battle will and
must be fought — but fought honorably. For somehow, we must reconcile
when it is over.
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