Is there anything of substance to be gained for homosexuals from the current quest for same-sex marriage?
At its inception, the "gay rights" movement could reasonably present itself as a struggle against societal oppression. Forty years ago, American law in most states punished homosexual acts as criminal offenses. In many cases the penalties attending such laws were severe. In Bowers v. Hardwick—the 1986 Supreme Court decision upholding Georgia's anti-sodomy statute—Justice Lewis Powell observed with understandable concern that the law at issue in that case permitted a sentence of up to twenty years in prison for the commission of a single homosexual act. In addition to such a legal landscape, homosexuals confronted a rather censorious culture. Mainstream America not only looked upon homosexual acts with disapproval, but also treated homosexual persons as objects of ridicule (at best) and hostility (at worst).
This is not to concede the claim often deployed by gay rights activists that such traditional laws and mores were based upon nothing but an irrational and malicious hatred of homosexuals. Such a claim unjustly overlooks ancient philosophical and religious beliefs that deeply influenced the Western understanding of the purposes of human sexuality, an understanding that included principled grounds upon which to view homosexual acts as morally disordered. It is, after all, hardly plausible that such beliefs were invented for no other reason than to justify hatred of homosexuals. It is to admit, however, that society's earlier strictures against homosexuality could reasonably be viewed—even by those who still today disapprove of homosexual conduct—as uncharitable and excessively punitive.
Homosexuals today face a markedly changed legal and cultural environment. Criminal anti-sodomy statutes, seldom enforced in the first place, have now been declared unconstitutional by the Supreme Court in Lawrence v. Texas (2003). Moreover, the Lawrence decision has been greeted by very little protest even from the most conservative defenders of traditional sexual morality, most of whom, despite their disapproval of homosexual acts, have no interest in seeing such acts punished as crimes. Indeed, American culture overall is more tolerant of homosexuality now than it has ever been. The ridicule and anger that homosexuals once faced is no longer mainstream but is now itself the object of mainstream disapproval.
Despite these changes, the gay rights movement persists. Having succeeded in changing American law and culture to such a remarkable extent in such a short time, it has moved on to a new quest, the quest for same-sex marriage. This new goal is different in kind from the ones already achieved: it is not so much a demand to be freed from evils imposed by society as it is a demand for positive public benefits, specifically the benefits that attend marriage. It is a mistake, however, to think that the same-sex marriage movement is aimed primarily at acquiring the material benefits and legal prerogatives that accompany publicly recognized marriage. The aim, rather, is equality of public recognition or approval.
This is most obvious in the ongoing federal lawsuit brought against California’s constitutional provision defining marriage as a union of one man and one woman, a suit that has no other object but equal recognition of—that is, equal public status or honor for—homosexual relationships. California already has a law recognizing the domestic partnerships of committed homosexual couples. That law affords homosexual relationships some measure of public status, and it bestows upon them the same legal benefits as heterosexual marriage. The extent of California’s legal “discrimination” against homosexuals, then, is that the state has sought to reserve a traditional and honorable title for heterosexual unions. This is all that is at issue in the Proposition Eight lawsuit, and it demonstrates that the aim of the same-sex marriage activists behind it is equality of public recognition.
It is not clear, however, that the quest for same-sex marriage offers any substantive good to those on whose behalf it is so insistently demanded. Put another way, it is hard to see why such an absolute equality of public recognition should be essential to the happiness of homosexuals. Let me explain.
The strongest argument against same-sex marriage—in the sense of the argument with the deepest philosophic roots, or the argument that gets to the most fundamental issues at stake—is that homosexual activity is contrary to the natural law. This argument is either true, or it is not. If it is true, then publicly sanctioned same-sex marriage will contribute nothing substantial to the happiness of homosexuals. There are various understandings of natural law, but all present the natural law as a reality that exists independent of human opinion, a rule for human flourishing that human beings can ignore only at their own peril. On this view, the real issue in human happiness is the moral quality of our lives and not how they are regarded by society at large. As Socrates explains to his young interlocutors in Plato's Republic, the actual being of the soul, and not its mere seeming, is decisive for human happiness. That is to say, happiness is the fruit of the proper functioning of the human soul, so that character, and not reputation or opinion, is the source of genuine flourishing. On this understanding, Socrates explains, a just soul, one ruled according to reason, is happier than an unjust one, regardless of whatever praises are heaped upon the successfully unjust man by a corrupted public opinion.
Accordingly, if homosexual conduct really is, as its natural law critics contend, a perversion of human desires and capacities, a wrenching of them away from their natural purposes, then such conduct will be a source of frustration and unhappiness regardless of whether society bestows its "recognition," and hence its approval, on it. On this view, there is nothing of substance to be gained from same-sex marriage even for homosexuals. Indeed, if traditional natural law theorists are correct in their assessment of homosexual conduct, then same-sex marriage would be not only pointless but positively damaging, to the extent that it could mislead people to their own harm by bestowing a spurious respectability on an objectively disordered way of life.
But of course the proponents of same-sex marriage adamantly deny the truth of the traditional natural law critique of homosexual conduct. On the contrary, they hold that this natural law critique is, despite its philosophic pretensions, a mere prejudice with no basis in nature or reason. For them, homosexual relationships are naturally enriching to those who desire them, and for that reason they deserve the same public recognition that heterosexual unions enjoy. Once again, however, Socrates' point about the priority of nature to opinion, or of being to seeming, of soul to reputation, indicates that, if this view is correct, same-sex marriage would be nothing more than a needless addition to a naturally fulfilling undertaking.
In Socrates' time, the philosophic life was largely held in disrepute, thought to be the province of the unmanly and the politically unserious. According to Socrates, however, this negative reputation posed no serious impediment to his happiness precisely because the pursuit of wisdom is by nature a source, indeed the highest source, of human happiness. To take a less lofty example, contemporary American society loads massive amounts of attention and honor on sports at all levels, and hardly any at all on chess. This huge disparity in recognition, however, makes no difference at all to the true chess lover: precisely because he experiences chess as fulfilling his natural faculties and desires he has no interest in what other people think about his love for the game. Indeed, if the supposed lover of chess were to demand indignantly that his activity deserves recognition on a par with other games, we would rightly suspect that there is, in fact, some deficiency in the intrinsic satisfactions of chess that he seeks to make up through the more superficial satisfactions of recognition or public honor. In sum, if our activities are the genuine seat of happiness, then the quest for "recognition" of same-sex unions is really just the pursuit not of a reality but of a mere appearance.
The preceding argument does not hold that reputation is a matter of complete indifference. We are sociable beings. Hence we crave honor and feel the sting of disgrace. Accordingly, gays would be pursuing something of serious value if they were trying to overcome disgrace. But they do not now live in disgrace. Their lives are now viewed as a legitimate minority alternative. Their being known as homosexuals does not preclude their winning public recognition on other grounds. They are, again, merely seeking equality of public recognition. But this is not a making up of some serious deficiency, and it is in fact the kind of mild lack that is endured by everyone who pursues some love that is tolerated but not wholly understood or endorsed by the public at large. (We might also add that it is strange for a movement that began by presenting itself as a bold repudiation of conventional morality now to be demanding conventional recognition.)
There is, moreover, a further emptiness in this quest for equal recognition. The progress of same-sex marriage in American politics has been almost entirely the result not of legislation but of litigation. The final, national victory of same-sex marriage, if it comes, will come as the result of a ruling of the Supreme Court of the United States issued not only without the consent of a majority of Americans, but even against the legally expressed will of majorities in a majority of states. Public recognition of same-sex marriage is demanded as a sign of equal public acceptance, but the mode in which it is being sought ensures that the acceptance will be fraudulent. It will be in fact not a public acceptance but the acceptance of a legal and political elite that is able to force its will on the public.
Given the substantial—unprecedented, in fact—toleration and freedom that homosexuals already enjoy, and given the inevitable sense of grievance that a victory through litigation will produce in the defenders of traditional marriage, the proponents of same-sex marriage should ask themselves whether it is really worthwhile to exert themselves so much, and to so roil the politics of their country, in the pursuit of absolute equality of recognition.
Carson Holloway is political scientist and the author most recently of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press).