The Agenda

Same-Sex Civil Marriage, Deinstitutionalization, and the Counterfactual Future

Some years ago, when I first encountered the debate over same-sex civil marriage, I was intuitively drawn to the “deinstitutionalization” position, i.e., let’s dissolve the institution of civil marriage and create all-purpose civil unions that are bundles of various legal rights, thus “getting the state out of marriage.” This view still has some purchase among those of a libertarian bent, but I’ve since reached the conclusion that it is unworkable. As Josh Barro suggests, civil marriage is deeply woven into our system of government. While universal civil unions could serve the same purpose, universal civil unions that are marriage-like in their implications for taxes and immigration would be a merely rhetorical shift that would nevertheless lead to a lot of resentment and confusion. 

Part of the reason is that, as Ryan Anderson, a prominent critic of same-sex civil marriage, has argued, law serves a pedagogical function. We assign various legal rights, duties, and privileges to married couples as a way of affirming the marital bond. So even a rhetorical retreat to universal civil unions would be contentious. Moreover, it seems plausible that universal civil unions freed of the historical freight of marriage would prove less durable than civil marriage. 

Once we abandon the view that we can painlessly move from civil marriage to universal civil unions and avoid any thorny moral questions, we’re once again left with the question of whether or not it is appropriate to expand civil marriage to include same-sex couples. Peter Berkowitz’s brilliant essay on “The Court, the Constitution, and the Culture of Freedom” continues to offer the most convincing take on the subject:

Now, if you believe that the birth control pill, cohabitation before marriage, no-fault divorce, laxness concerning adultery, and the movement of women out of the home and into the workplace undermine marriage — as do many conservatives — and yet you are unwilling to support legislation to prohibit these practices because of the cost to individual freedom — an unwillingness many conservatives share — how in good faith can you single out same-sex marriage for legal prohibition?

One answer is that, in contrast to same-sex marriage, the aforementioned practices do not involve formal state approval, either symbolically or through the conferring of financial benefits. They call only for the state to mind its own business. In contrast, proponents of same-sex marriage seek both the financial benefits and the symbolic legitimation that the law confers through marriage.

In fact, in minding its own business with respect to all other aspects of intimate relations, the state makes a powerful statement of moral and political principle: The organization of intimate relations is a matter of personal choice. Now that bigotry against homosexuality is on the run, express legal liabilities have been lifted (with the notable exception of the military’s “don’t ask, don’t tell” policy), popular culture has increasingly embraced gays and lesbians, and the question of same-sex marriage has been brought out into the open and into focus by vigorous public debate, the speculative harms critics associate with same-sex marriage will, in more and more people’s minds, be outweighed by the commitment to toleration of choices that differ from one’s own — particularly in matters relating to love and the family, especially between consenting adults where physical harm is not an issue. While majorities in the United States may not yet be ready for same-sex marriage, larger majorities will oppose legislation that smacks of anti-same-sex animus.

That is where we find ourselves. Opposition to the redefinition of civil marriage has been successfully characterized by proponents of its redefinition as a manifestation of anti-same-sex animus. 

Opponents of same-sex civil marriage see this as entirely unfair, as Berkowitz explains. Yet he also explains why these objections fail to resonate with younger voters:

Unlike the prohibitions on interracial marriage properly struck down by the U.S. Supreme Court in 1967 in Loving v. Virginia, the prohibition on same-sex marriage, as the Massachusetts dissenters argued, is connected to valid policy questions. The color of one’s skin has no bearing on the essential purpose of marriage, but same-sex marriage raises concerns about parenting, child rearing, and the structure of the family, which lie at the very heart of marriage’s purpose.

And yet opponents of same-sex marriage must reckon with the fact that over the past 40 years the very meaning of marriage has undergone a substantial change. The sexual and cultural revolutions of the 1960s have pushed the bearing and rearing of children from the core of marriage’s social meaning. Ask twentysomethings and thirtysomethings what they hope for from marriage. They will, of course, tell you that they want love and that they definitely want companionship — indeed, that they expect their spouse to be their best friend. And obviously they want to share the pleasures of sex. Then ask them about children. Many will pause and say well, yes, certainly, they are thinking about children, and eventually, somewhere down the line, they expect to have one or two. But children, once at the center of marriage, have now become negotiable, and what used to be negotiable — love, companionship, sex — has moved to the center. Under these circumstances, legal recognition of same-sex marriage will not represent a change in the meaning of a venerable social institution through law, but rather an adaptation of law to a profound change in social meaning. 

A number of thinkers, including Anderson and his co-authors Robert P. George and Sherif Girgis, reject this revisionist view of marriage in favor of what they refer to as the historic or conjugal conception of marriage in their essay “What is Marriage?” 

Recently, a friend offered an alternative view that I found illuminating and he kindly allowed me to share it:

My argument on gay marriage starts from the assumption that the main thing we care about is the indirect effects it will have on far more numerous heterosexual unions, especially those with children. Thus I bracket religious liberty, material benefits to gay couples, symbolic affirmation to all gays, etc. From this perspective, I see the main argument against gay marriage as being that it will change the cultural meaning of marriage to deemphasize procreation and (further) play up the companionate aspect, as well as possible effects of making marriage less attractive to men who see marriage as a way to affirm their masculinity/heterosexuality. Note that men who feel this way are those already least likely to marry.

The first argument is broadly in tune with Anderson, George, and Girgis. The second, regarding the attractiveness of marriage, was invoked years ago by Megan McArdle in a discussion of the marginal marriage candidate, for whom the explicitly gendered nature of marriage might be significant. 

Countering this, the main argument for gay marriage (in terms of indirect effects on heterosexual unions) is less about it being better for straights than the c. 1990 status quo ante than it being less bad than the counterfactual future where it doesn’t happen. If the right somehow succeeded in defeating gay marriage or, as is more plausible, forestalling it another generation before it happens anyway, the likely outcome is not the c. 1990 status quo ante. Rather, it is almost certain that we would see a push for one of two things. (a) Domestic partnerships which are eventually extended to heterosexuals, or as I think of it “no fault” on steroids. (b) The complete deinstitutionalization of civil marriage. You often see this Solomonic, split-the-baby wisdom coming from libertarians as “why is the state involved in marriage in the first place?” This isn’t even counting the Brad Pitt effect, in which a substantial part of the country would come to see marriage as a discriminatory institution, sort of a family equivalent to the Augusta National Golf Club, and refuse to participate in it.

Basically, you can see marriage almost as a patient where the heterosexual/procreative nature of the institution is a limb that’s developed gangrene which we lack the capacity to treat. You might wish that the gangrene had never set in, but given that it has, your choices are to amputate the limb or watch the patient die. Even if we assume gay marriage is undesirable, it is certainly much less bad to take marriage as it existed c. 1990 and extend it to gays and lesbians than it would be to watch marriage get de-institutionalized entirely or dumbed-down to ephemeral domestic partnerships. The longer we let this fight drag on, the more likely it is that we’ll see a frontal assault on the basic institution. As such, even if one lacks enthusiasm for gay marriage and wish the subject had never been broached, at this point the best thing is to just accept it as less damaging than the fallout from it not happening.

My sense is that Anderson, George, and Girgis would not embrace this view, presumably because they believe that the scenario my correspondent lays out can be avoided and that a cultural consensus around the conjugal conception of marriage can be rebuilt. But it strikes me as a fairly strong argument against the strongest argument against permitting same-sex civil marriage. 


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