As virtually everyone has heard, the mayor of San Francisco is issuing marriage licenses to homosexual couples in defiance of state law, which defines marriage as a union between a man and a woman. The mayor defends his actions by arguing that the law’s definition of marriage violates equal protection.
Social conservatives have fought back by asking a local judge to issue a stay to prohibit the mayor from issuing any more illegal licenses. Of course, this is precisely what the other side wants: It creates “victims” and will keep the issue in the judiciary so that in the near future a federal bench may issue a ruling supporting same-sex marriage long before the social conservatives can pass an amendment to the federal Constitution.
I believe, however, that given present circumstances that the best strategy is to take the mayor at his word and employ “street theatre” in a provocative way in order to force the other side to defend their marital nihilism in all its glory. Here’s the plan: Have about 50 folks go to San Francisco city hall and request marriage licenses, but not for gay marriages, rather, for other sorts of “unions” that are also forbidden by the state: three bisexuals from two genders, one person who wants to marry himself (and have him accuse the mayor of “numberism,” the prejudice that marriage must include more than one person), two married couples who want a temporary “wife-swap lease,” a couple consisting of two brothers, two sisters, or a brother and a sister, an adult mother and son, and a man who wants to add a second wife and a first husband in order to have a “marital ensemble,” etc., etc. Let’s see if the mayor will give these people “marriage” licenses. If not, why not? If not, then the jig is up and the mayor actually has to explain the grounds on which he will not give licenses to these folks. But what could those grounds be? That it would break the law? That marriage has a nature, a purpose, that is not the result of social construction or state fiat? If so, then what is it and why?
This is the sort of public philosophical interrogation that has to occur if the social conservatives really want to win. All their legal and social-science posturing–i. e., their appeal to what the majority of citizens want, etc.–will be for naught unless they can press the other side to account for their point of view. For this is not a dispute about “policy.” It is a battle over the nature of who and what we are and whether we can know it. It is philosophical combat over metaphysical turf with no Switzerland to which one can flee for asylum.
The street theatre I am suggesting will show that once marriage is defined merely as a contract between consenting adults rather than as an institution grounded in our natures as men and women, recognized and honored by the wider community, then marriage simply does not exist. According to the mayor of San Francisco, marriage is not something we enter; it is something we create or undo by our willfulness. It is not part of the order and nature of things that we honor and preserve by subjecting ourselves to its moral grandeur; rather, it is like the colors of traffic signals, diplomatic immunity, or the dollar amount of parking fines, arbitrary rules created by governments in order to facilitate safe travel, economic transactions, international relations, state funding, and/or public peace. Ironically, that means that gays who are forbidden by the state to marry each other are not being treated unfairly or unjustly, since, according to their own view of things, marriage is a creation of the state and there is no standard of marriage with which the state’s definition must be consistent in order to be considered “just” or “unjust.” Consequently, the premises that ground same-sex marriage put in place ideas that are consistent with, and will likely lead to, the unraveling of marriage itself.
–Francis J. Beckwith is associate professor of church-state studies, and associate director of the J. M. Dawson Institute of Church-State Studies at Baylor University. His website is francisbeckwith.com.