THE CONSERVATIVE CASE FOR GAY MARRIAGE
May 17, 2004
President Bush’s support for a Constitutional Amendment banning gay marriage is neither thoughtless nor heartless, as his political foes are wont to suggest. But it is wrongheaded. Noting that “a few judges and local authorities are presuming to change the most fundamental institution of civilization,” Bush asserts that marriage “cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.”
He’s at least half correct. In March, the Massachusetts Supreme Court reiterated its decision of last November in Goodridge v. Department of Public Health which compelled the state to move towards granting same-sex couples marriage licenses. The Court rejected the “civil union” compromise adopted by neighboring Vermont--an option Bush wants to reserve for state legislatures. Nothing less than a full recognition of gay marriage will satisfy the Court. This makes sense since it had previously ruled that Massachusetts’s ban on gay marriage was irreconcilable with the principles of liberty and equality found in the state’s constitution and provided the legislature with 180 days to enact laws to make gay marriages possible. So the clock is still ticking towards the May deadline
Bush is right to view the Massachusetts Court’s ruling as an egregious instance of judicial activism, an attempt to legislate from the bench. Gay marriage undermines the traditional definition of marriage as a union between a man and a woman; conjugal ties between same sex partners have never been legally recognized as marriages in the United States. The notion that a single court in a single state (and with a dubious popular mandate even within that state, according to recent polls) might compel every other state, via either the full faith and credit clause of Article Four of the United States Constitution or the equal protection and due process clauses of the Fourteenth Amendment, to sanction same sex marriages flies in the face of the balance of powers envisioned by the founding fathers. The desperate maneuvering by Massachusetts governor Mitt Romney to deny marriage licenses to same-sex couples from out of state--a tactic sure to run afoul of equal protection guarantees--further illustrates the peril of a state's judiciary setting itself against the executive and legislative branches.
It’s one thing, however, to argue against judicial activism per se; it’s another to argue against the particular goal activist judges are attempting to achieve. (The decision in Brown v. Board of Education, for example, might be viewed as judicial activism; ditto the decision in Marbury v. Madison . . . yet no one nowadays seriously questions their wisdom.) And in his opposition to gay marriage, President Bush is quite simply placing himself on the wrong side of both history and justice. For the conservative case against gay marriage is ultimately insupportable. It will fall. Consider this recent formulation by National Review’s Stanley Kurtz:
In setting up the institution of marriage, society offers special support and encouragement to the men and women who together make children. Because marriage is deeply implicated in the interests of children, it is a matter of public concern. Children . . . depend upon society to create institutions that keep them from chaos. . . . That is why society has the right to give special support and encouragement to an institution that is necessary to the well being of children--even if that means special benefits for some, and not for others. . . . The "discrimination" inherent in the legal institution of marriage is relatively minor. Single people are "discriminated against" by the benefits granted to married couples. Those who prefer to live with multiple lovers are also "discriminated against" by the institution of marriage. So, too, are same-sex couples "discriminated against" by marriage. Each of these groups is now demanding redress from this "discrimination." Such redress will spell the end of marriage.
If Kurtz is correct in his reasoning, if the “special support and encouragement” society grants to the institution of marriage is predicated on “the well being of children”--if, indeed, their well being offsets the “relatively minor” discrimination against other conjugal arrangements which cannot bear children--then why do the benefits of marriage accrue to heterosexual couples whose childbearing years are behind them? Why can Grandma and her beau trot down to City Hall for a marriage license while Uncle Paul and his “special friend” are turned away? Clearly, society’s discriminatory stake in the institution of marriage consists of more than its interest in the welfare of children. Indeed, the Massachusetts Court explicitly rejected the begetting and raising of children as the sole rationale for the state’s promotion of marriage.
But what of Kurtz’s concern that opening up the institution to alternative conjugal arrangements would “spell the end of marriage”? It’s true that gay marriage would, in effect, confer full social validation to homosexual relationships--which runs counter to strict Old and New Testament injunctions against homosexual acts. The Judeo-Christian tradition, which gave rise to the self-evident equality of all human beings, and through which Thomas Jefferson formulated the inalienable rights of life, liberty and the pursuit of happiness, is consistent in its negative view of homosexuality.
Beyond traditional and scriptural objections, there are more pragmatic concerns: If marriage is legalized for homosexual and lesbian couples, Kurtz asks, why not also for “those who prefer to live with multiple lovers”? And if the state allows polygamous marriages, why not incestuous marriages?
The Massachusetts Court’s ruling implicitly acknowledges concerns over polygamy, defining marriage as “the voluntary union of two persons as spouses,to the exclusion of all others.” But what if the Utah Supreme Court, answerable to the state’s large Mormon constituency, somewhere down the line defines marriage in a way more sympathetic to multiple partners?
It’s a worrisome point. Yet there’s a logical distinction between legalizing gay marriage and legalizing polygamous marriage, a distinction that goes to the deeper reason the government sanctions marriages to begin with--i.e., marriage promotes social stability. This is a more basic stake than the begetting and raising of children, for it applies to all marriages, even those not open to childbearing. The decision to marry boils down to a decision not only to bind yourself to another person but to settle down--or, in the case of second marriages, to re-settle down--to establish a lasting foundation upon which to ground your personal and social life. Marrying means you’re no longer seeking, which is a more volatile state. But polygamous marriage lacks the closure of single partner marriage, so it doesn’t end the process of seeking. It therefore contributes nothing to social stability. The Massachusetts decision notes the stabilizing function of marriage: “It is the exclusive and permanent commitment of the marriage partners to one another . . . that is the sine qua non of civil marriage.” Marriage is a collective good precisely because it represents an exclusive and permanent union; otherwise, it’s of no benefit to a civil society.
The pragmatic distinction between legalizing gay marriage and incestuous marriage is also discernable. Current scientific evidence suggests sexual orientation is, at least in part, a function of biology; if homosexuality isn’t an elected lifestyle but a natural state, then denying gays the right to marry a partner to whom they’re naturally drawn is unjust. By contrast, no scientific evidence indicates that incestuous attraction is a biological orientation, or that those who practice incest are naturally drawn only to family members. But even if incest, like homosexuality, were rooted in biology, society would still have cause to outlaw incest because it works against family stability. If parents view their children as potential marriage partners, or vice versa, the reciprocal dynamic of trusting and providing which defines familial roles would be undermined. Society’s interest in stable families requires its banning incest.
If the pragmatic objections to gay marriage are answerable, what remains are the objections based on culture and religion--which are never to be taken lightly. But, in the former case, cultural traditions occasionally outlive the mindset in which they evolved; this happened, for example, with interracial marriage. Until the Supreme Court’s 1967 ruling in the case of Loving v. Virginia, which struck down anti-miscegenation laws, it was illegal for white people and black people to marry one another in 16 states. Will gay marriage eventually gain the acceptance of interracial marriage? That’s unknowable. But the argument that the weight of tradition, by itself, justifies the laws which uphold it is hopelessly circular.
That leaves the final objection to gay marriage--religious condemnations of homosexuality. It’s true that the Bible explicitly condemns homosexual practice. In the Old Testament, for example, Leviticus 20:13 reads: “If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death.” In the New Testament, the Apostle Paul rails against the wickedness of those whom God “gave up to degrading passions. Their women exchanged natural intercourse for unnatural, and in the same way also the men, giving up natural intercourse with women, were consumed with passion for one another. Men committed shameless acts with men and received in their own persons the due penalty for their error” (Romans 1:26-27). Such passages cannot be skirted as aberrations or deconstructed into meaninglessness. Nevertheless, less severe messages are also found in scripture--messages, in the Old Testament, to “do justice and love kindness” (Micah 6:8), messages, in the New Testament, to prioritize the Spirit above the letter of the law (2 Cor. 3:6).
It’s presumptuous, of course, to ask people devoted to the literal truth of the Bible, in its many particulars, to set aside specific anti-homosexual passages and embrace an overriding message of charity towards all . . . or to ask people steeped in a traditional way of looking at the world to embrace another way.
But--as awkward as it is to raise the subject in this context--isn’t that exactly what we’re urging Muslims to do in the cause of the War on Terror? Aren’t we asking them to set aside specific scriptural mandates to wage jihad against infidels in favor of more tolerant Koranic sentiments? And aren’t we asking them to embrace notions like religious freedom and women’s autonomy which run contrary to longstanding Islamic traditions?
What will gay marriage mean to the future of American society? That’s hard to predict. Kurtz cites the steady rise in out-of-wedlock births in Denmark, Sweden and Norway: “Not coincidentally,” he writes, “these countries have had something close to full gay marriage for a decade or more.” Well, it may not be entirely coincidental, but such statistics still fall short of establishing an absolute causal relationship. Gay marriage has never been legal in the United States, but out-of-wedlock births have risen dramatically over the last three decades--the result of a myriad of social and legal factors. Some of these were well-intended but ill conceived, such as the Aid to Families with Dependent Children cash benefit plan. But others causes, such as guaranteeing women equal pay for equal work, which might be indirectly implicated in the rise in out-of-wedlock births, are difficult to regret--even for conservatives. Guaranteeing equal pay for equal work, regardless the unforeseen consequences, was simply the right thing to do.
So, too, is legalizing gay marriage--which is why President Bush should come around on it. For that matter, so should conservatives (and I count myself among them). If we ourselves cannot abide by the principles of individual liberty and equality before the law, even at the expense of tradition and scripture, it’s hypocritical to premise the War on Terror on those principles. The legalization of gay marriage tests our resolve to do greater justice at home. We should rise to the challenge.