From small mistakes come large failures. Or, as Aristotle puts it, a small error in the premises may lead to a grave error in conclusions.
I have been listening to the Supreme Court oral arguments on gay “marriage” – 2 days of arguments, one on Prop 8 from Calif, the other on DOMA and an estate tax marital deduction. Among many smaller thoughts, one thing stands out that is remarkABLE but is absolutely, utterly unremarked by both sides, and illustrates perfectly the way a cultural attitude shapes gaps in perception: In all of the comments about Prop 8 and DOMA, nothing by either side (so far as I have heard, anyway) allows one to think that both these laws allow gays to get married. You would think that both laws state: Homosexuals cannot marry. That’s false. NEITHER LAW stands in the way of gays getting married. The mantra of the gays is that they are being blocked from marriage, which is a civil right. Utter hogwash.
Of course gays can get married. In all 50 states, any man who is of age and unmarried can marry a woman who is of age, not closely related, and not already married. That includes gays. A gay man can marry a woman. A lesbian woman can marry a man. The law does not pick out homosexuals and say “homosexuals cannot marry”. The law doesn’t even ask if you are homosexual. You can be gay, straight, bi-sexual, or whatever, the law _does_not_speak to whether you can get married. It only speaks to the gender complementarity of the people marrying. Any gay man can marry a woman, just as any straight man can marry a woman. Any lesbian woman can marry a man, just as any straight women can marry a man. There’s no discrimination against homosexuals in THAT. Equal before the law.
OK, you’re nodding and smiling and saying “well, of course, but no gay men WANT to marry women.” In point of fact, this isn’t accurate: there are some gay men who want to marry women because they want children, and they want the children naturally. They love and have a respect for the natural good of children, and they respect the natural order in bringing children into the world in the context of a natural family. These gay men DO actually want to marry women for the sake of children, even though women cannot satisfy their cravings for sexual love. They don’t want the women for satisfying sex, but they want do want marriage for children.
But even aside from these few gay men, the discriminating that is going on in the law is a discrimination not about your sexual orientation but about the gender-difference of the union. The law discriminates in favor of gender complementarity, and as a result stands against gender neutrality or gender irrelevancy. The law says absolutely nothing at all about the sexual orientation of the parties. No discrimination on the basis of sexual orientation occurs whatsoever.
Yes, of course, but marriage is about sexually satisfying love - romantic love - so walling off marriage so that gays cannot marry people with whom they desire sexually satisfying romance is against civil rights, isn’t it? Well, is it? Let’s pick that apart a little.
Not all societies are so totally roped in on rights to protect our romantic desires. In fact, in most societies before the 20th century, and in India today, many marriages have been arranged between families. Sometimes the families did the arranging without regard to romance at all, (especially among the nobility), and other times they arranged the marriages with romance being a secondary concern.
Yes, I can hear your howls of outrage: but that’s not American! Our culture doesn’t force people into arranged marriages! Are you so sure? My last used car I bought off someone whose family arranged their marriage. Admittedly, they had emigrated from India, but they were here in America, getting along just fine among all of us romantic lovers. One of my closest neighbors is a man whose family has arranged marriages for 3 of their children, right here in America – and they are not from India. I am not pointing this out to belittle the notion of romantic love, I am doing it to make a point about the narrowness of cultural perspective. People just won’t stop and reflect carefully on “what is marriage for”, they make assumptions about it, historically unreflective assumptions that don’t necessarily hold up in the light of day. In the upper class families of Europe, at least among those without strong Christian scruples, it was commonly said that marriage was for dynasty, mistresses were for personal satisfaction. Many French still have some of that attitude. On the other side of the coin, in ancient Athens there was a quite considerable streak of toleration for homosexuality, and openly gay people like Alcibiades were not treated with hatred. Because only men (typically) were educated, in some circles it was thought that marriage is for family and children, but if a man wanted a “true equal” in a lover he would seek out another man. It is, therefore, possible to hold no animus against romantic fulfillment, without assuming that it’s the core, essential thing marriage is about. And it is possible to have no animus against homosexual relationships, without in the least bit imagining that two gays ought to be able to marry each other. Just to finish out the thought: The couple from whom I bought my car reiterated the long tradition (from both east and west) that if a man and a woman commit to marriage with respect for each other and with a commitment to making loving choices on behalf of each other (including in the bedroom), romantic satisfaction tends to follow, through natural causes combined with human effort. It isn’t that they treat romantic love as being irrelevant to marriage, but that they recognize it as being not the sole determining concern, nor even the first.
There is no definitive reason why people who feel romantic love for each other have to get married. Heck, some romantic couples don’t want to even live in the same house, they want to continue to see each other regularly but have their own independent establishments to retreat to. Similarly, some people who are happy to live in the same house / apartment have absolutely no romantic feelings for each other at all. Suppose two bachelors shared the same apartment for 3 years, but who each (separately) enjoy an active sex life with various women, for example, neither having any intention of marrying, and they eventually decide to buy a house, half each, to continue to enjoy their stable play-boy arrangements. So, if two people love each other, and desire each other sexually, and have no intention of living together or having children, should we socially “recognize” their romantic and sexual feelings by according their condition the name and status “marriage”? Nobody has ever suggested it so far, and with good reason. If two people live together and expect to continue to live together for many years indefinitely, should we give that intention the name and status “marriage”? Nobody has ever suggested it before now, and with good reason. Is NOT calling their long term intention “marriage” a denial of a civil right? Of course not. There is no civil right to having society grant the recognition of the status called “marriage” on people like the above.
If you ask 50% of 18 year old men, they would LOVE to marry X, Y, or Z starlet, say Taylor Swift. But they cannot do so, even though that’s what they “desire”. So, is that against their civil rights? Of course, it isn’t what Swift wants. The “civil right” of a man to marry a woman who doesn’t want to marry him seems to be something of a misnomer, doesn’t it? The civil right of the man can’t be a right that runs roughshod over the civil right of the woman, so we say that no, the man’s civil rights do not protect his right to marry someone against their will.
Can we generalize and say that among consenting adults who have a romantic love, they have a right to marriage as a civil right? Well, again, the societal answer to that has ALWAYS been “not necessarily.” A father has no right to marry his daughter, no matter how much “in love” they are. Likewise, a brother and sister have no such civil right. Why? Well, the reason is obvious, of course: CHILDREN. There is too much danger of children being genetically short-changed. So, let’s follow this out along the lines of an argument that took up at least 5 minutes of the SC’s time: what if both father and daughter are sterile – suppose the daughter aged 35 has had an hysterectomy and the father aged 52 is sterile from chemo drugs.. Can they get married? There is no genetic problem with that. What possible social objection could there be, then?
The answer is deeper than that, and a 5 minute oral argument before 9 justices ready to break into each other’s thoughts is not the venue for sorting it out, unfortunately for 300 million people whose future is riding on their decision. Social recognition of a special state, with special benefits and special requirements, arose in connection with and due to the relationship of children to their parents. If you look at the 1000 ways society conveys social respect to married couples, it is easy to see that most of them arose within the context of protecting and promoting the welfare of the children which normally are the fruit of a ”marriage” as traditionally defined - a permanent, social, emotional and physically (sexually) expressed union of two people, which union is of such a character and power as to be capable of engendering children without outside agency, when not impeded by physical circumstances. Defined properly, the complementarity of the sexes required for the entity is manifest and integral.
Even many of the benefits that apparently are accorded simply between the spouses arose within a context in which those benefits protected and promoted the welfare of children. To take a simple and easy example, look at the estate tax marital deduction from one of the cases at stake here. Thea Speyer’s estate claimed a deduction available to married couples. But why did society even decide to grant a marital deduction for estate tax for married people? Obviously, when two people have spent decades together and built up a unified household together, splitting that household apart and taxing one half is an unsavory sort of burden to put on the widow. But THAT situation, is, itself, rooted in a still deeper set of needs, namely that a married couple will spend decades together building up a household – which is for the sake of children. That’s because marriage is for the sake of children: the permanence of marriage is one of its core aspects, and is due to the needs of children. (By the way, there is no necessary assumption that the ENTIRE estate needs to be protected by such estate tax marital deduction: it makes much more sense to protect the household and (subsistence) farm estate for this than it does to protect the portfolio of stocks for a married couple, and not too long in the past only half of the estate was so protected. This is consistent with some state laws in intestate deaths – the state-ordered division of goods put only half in the hands of the widow, and the other half went to kids outright.) Similarly, the needs of children are what drives couples to base their economy on one parent’s large(r) income from full time work, which allows the other parent either to stay home for the kids or work only part time – and this is the basis for treating the entire “estate” of the couple as being a joint effort and according that property a marital deduction, even though most of the property comes from directly from only one spouse’s work. The presumptive rationale for this deduction benefit falls apart when there ceases to be any relevant connection between marriage and children, and between the status of marriage and having a combined estate (of not-very-equal personal property between spouses) for the sake of something beyond merely an associated household during life (given that we don’t accord 2 long-term housemates such a deduction).
So, any benefits accorded to the status of marriage on account of its permanence or its distinctive combined living is also due to marriage’s connection (in principle) with children. Without that, nobody would have cared enough (historically) to award the status such benefit. This remains true even of marriages where both parties are sterile: the definition of marriage includes physical union of such a character and power as to be capable engendering children, if no physical impediments stand in the way.
(Lest we have people carping that permanence of marriage is something that belongs just as much to marriage due to the emotional bond as due to children, that emotional need is ITSELF related to children. Christian marital ethics teaches that God designed man as an integrated entity, with its parts being harmonious. Thus, He designed man so that his emotional capacities and needs would fall in harmoniously with his physical dimension: the very same design that makes children need two parents for so many years makes parents ready to commit to being together permanently: human sexual love (as distinguished from animal desire) is a love of rational self-giving, so that the permanent self-giving by which a parent commits to bringing a child into the world is ALSO a permanent self-giving to the spouse by which that child is engendered. (The fact that not each individual act of sex engenders a child is again irrelevant – the act is of such a nature and power as to do so unless impeded by physical circumstances.) It is impossible to say that the affective unitive aspect of marital union is separated from the good of children. Likewise, the human need of children to be raised in a family of permanent complementary love is borne of the same integral design: To grow complete psychologically, the child needs graphic, personal examples of both fatherly and motherly (self-giving) love. The harmony between personal satisfaction, sexual love and children (conceiving, bearing, and raising well) is proof of the integrity of the design.)
What has all this to do with civil rights? This: the state doesn’t grant to two people who have feelings for each other with a special status merely because they have those feelings. That’s not what the social recognition is for, and there is no civil right violated. Nor does the state grant special status on two people who want to live together really, really strongly – again that’s not what the social recognition is for, and there is no civil right violated. To combine the two situations into one couple - 2 people who have really strong emotional feelings and who want to live together - merely adds one irrelevant condition onto another, without creating a relevant condition thereby. If, within their feelings and living together they generate a physical union which is itself of such a nature and power as to engender children (unless physical circumstances hinder), THAT’s a new condition to the enterprise that matters to society in a fundamental way and bears social recognition.
What has all this to do with the Supreme Court’s deliberation, and a shoe losing its nail? Here’s my prediction for the outcome: Going by the tenor of his comments in March in court and his earlier judicial theorizing, Justice Anthony Kennedy seems to be leaning toward bringing eternal infamy upon his first name (ahem) and the Court by siding with the gays, unless he can carve out a middle path that satisfies neither the gays nor normal marriage. That middle path could take this form: Prop 8 could have been a legitimate law in a state that protects children’s welfare by reference to marriage explicitly. But in a state that allows gay adoption (even if not married) and adoption by singles, they have chosen to disregard the ancient connection between marriage and children, and so this state at least cannot argue that they intend a rational protection of children by allowing only straight people to be married. If he takes such a position, at least for those purposes the cause of normal marriage will have been lost earlier in the so-called “little” battles over contraception, abortion, sodomy, and allowing gays “civil unions”, and allowing gays (or single people) to adopt – all individual smaller battles over the nature of sex and marriage. People who said back in 2004 “well, why NOT allow gays to adopt, it doesn’t have any greater import than just taking care of that child” were wrong, demonstrably so. Thus in arguments on both days, lawyers for traditional marriage were hampered in attempting to argue anything like traditional marriage, and it showed in what they were left with. Lawyers for DOMA hardly even attempted to make a case for the traditional marriage in its own right, and lawyers for Prop 8 had to thread a much more difficult course than simply saying that sodomy and gay sex is contrary to marital love because marital love is built into a context that relates such love and children integrally. The SC itself will have been the agency by which marriage was undone, but earlier in the midst of Griswold, Roe, Lawrence, etc, where the Court repeatedly ignored underlying principles connecting sex and marriage, thereby making those arguments nearly impossible to make without also running afoul of accepted dicta about contraception, abortion, sodomy, etc.
If you listen to the debates, it will be immediately clear that if the SC vote goes for the gays and against normal marriage, there is no conceptual limit to “marriage.” Soon there will be 3 and 4 person groups who want to marry, and there will be no “rational” state basis for saying no. People will argue for, and attempt "temporary" marriages - which (if there are no children) might have the benefit of allowing the couple after the end of the term to call themselves "not married:" without having to go through a divorce, and without naming themselves "divorced". Ironically, line “marriages” will happen (6 to 15 or more people marrying, intergenerationally, adding new people as old ones die, so that a “line marriage” can last literally for hundreds of years) and will force a complete re-structuring of the marital deduction on estate tax after all. After things like that, people will attempt to “marry” the other partners in a limited partnership, and then the shareholders of a closely-held corporation will attempt marriage (thus putting a wrecking ball through the pension and health insurance systems organized with spousal benefits). Soon, governments will stop according X, Y, and Z benefits to marriage, and it will become a much less desirable status than it once was, so much so that many gays will wonder what the point was for pushing for gay “marriage” anyway. A pyrrhic (brimstone variety) victory, discerned only after they have brought down a whole culture. If we are incredibly lucky (after all that), we will eventually arrive at a “new”, separate status for people who want to have children within a permanent committed relationship of complementary love – and THAT status will again start receiving social benefits. But Hell forbid that we call it marriage.