People generally take it for granted that marriage will be “available,” but despite the powerful forces inclining people to marry, the availability of marriage as an institution they can choose to enter cannot be taken for granted. This is not unlike another major social institution: property. There are powerful forces inclining human beings to accumulate property, and there is a strong natural basis for properly qualified property rights, but in a given society, such property rights may not be available. Property is both natural and pre-political, on one hand, and also a social institution essentially dependent on various legal arrangements, on the other. So, too, with marriage.
One of the ways in which marriage can become unavailable to people is for the political community to offer people an institution called “marriage” that is not really marriage. By inculcating in its citizens—through social practices and laws—a notion of marriage that lacks some of its essential ingredients, a political society could, effectively, make “real marriage” impossible for many of its citizens. (Note that, today, those who believe that marriage has certain essential features that cannot be legislated away are reduced to using the term “traditional marriage,” in an effort to distinguish their beliefs from the very different reality that today’s “marriage” has become.)
One way to make real marriage unavailable to people is to make “marriage” a contract that is temporary and terminable at the will of either party. Whatever the impact of the allowance of divorce in a certain limited number of cases had been, the shift to no-fault divorce has profoundly changed the very notion of marriage among Americans, and has deeply damaged it.
How does this change in law affect marriages? How easily people could say in 1970, “If I want to get divorced, that’s my business—I’m not making anyone else do it (except my former spouse, of course). If others want to stay married, let them.” The problem is that such an attitude ignores the subtle interplay of personal choice and social mores. So many of our conceptions are shaped by our sense of what is “normal,” by the social ecology of which we are a part. No-fault divorce has created a world in which divorce is normal, and it is now a part of the ordinary psychological landscape of most people. For them, marriage is a permanently tentative and revisable commitment.
Not surprisingly, today more marriages break up, and more of the children they produce grow up without a father and mother working together to carry out that profoundly exalting and often terribly difficult task. Nor are people as likely to consider what kind of parents men and women will be if they remain open to the possibility of divorcing their spouses, which generally means significantly less time with their children. It is true that children have a certain resilience, and can overcome the loss of a parent or parents; but this is certainly not the ideal. The capacity of people to rationalize the pain to their children caused by their marital breakup is somehow to be expected—man is, after all, a rationalizing animal—and yet it is still astounding.
Another way to make real marriage unavailable to people—by changing social understandings of its very nature—is to make “marriage” essentially separable from children. This is what happens when homosexual “marriage” is legitimized, despite the fact that homosexual unions are essentially—of their very nature—incapable of procreation. There are, of course, many instances in which a heterosexual union is incapable in practice, by reason of age or physical defect, of leading to procreation; but the nature of the union remains the kind of union capable of producing children. In ways that many people, unfortunately, fail to understand, conjugal intercourse between a couple that is infertile or past childbearing age still has an inherent procreative significance—one that homosexual sexual activity inherently lacks.
Homosexual marriage is one more indication from society that marriage is whatever we want it to be: a malleable human institution that we can shape (or even dispose of), rather than a natural institution, with its own internal dynamics and demands, to which we should submit. But if we go down the road of making marriage such a malleable institution, why should we be surprised if it doesn’t fulfill the functions it is designed to fulfill—providing a stable and secure setting for the rearing of children?
My argument is not, it should be clear, that homosexuals are per se hostile to the general concept of marriage. Some homosexuals want very much to marry to express deep and enduring love for one another. What they cannot do, however, is enter a social institution that is inherently ordered to bearing and raising children—i.e., (real) marriage. Moreover, it is worth noting that a) there is, by now, no legal obstacle to people living together and declaring their love for each other, and making whatever joint arrangements they choose about finances, medical decisions, etc.; b) it remains unclear how many homosexuals really want marriage for itself (few, it seems, judging from marriage rates among homosexuals in countries that have legalized it), rather than as a way of furthering the social legitimization of homosexuality; and c) it seems plausible that, even when homosexuals want marriage, they usually want it only under certain conditions, which include non-permanence and even sexual non-exclusivity—that is, as one observer noted, homosexuals “want what marriage has become,” not what it once was thought to be.
Moreover, why should the state care about exclusively personal relationships—ones that don’t have the profound social implications of childbearing? If Harry loves David, why should the state have anything to say about this? Why should it care any more than it should about the fact that “Bob” or “Howie” is my “best friend”? The interest of the state in marriage is overwhelmingly its interest in children, who are the fruit of heterosexual relationships, and ideally—from the viewpoint of the state, and not just (say) religious groups—relationships of marriage.
It is said that some homosexuals do have children, and that social science studies have proved that same-sex parenting is in no way inferior to heterosexual parenting, and various professional associations have ratified these studies. The idea that professional associations render purely scientific judgments, untouched by ideological bias, has a certain charming naïveté about it, but anyone who has been a member of a large professional association knows that this is a delusion. And the studies that are said to prove the equality of same-sex parenting are generally of very dubious scientific value.
More importantly, the argument I have been making—about the change in the social understanding of marriage that same-sex marriage and other changes in marriage have brought about—is much more radical: it suggests that it is not just same-sex parenting that is problematic, but that “marriage” as it has come to be understood, including opposite-sex parenting, is now more problematic.
Some argue that refusal to recognize same-sex marriage harms the children in homosexual households, depriving them of public resources for families. But, to the extent that the state has an obligation to contribute to the well-being of children (who are not themselves responsible for their situation), this can be done without ratifying the legitimacy of homosexual relationships as “marriage.” For example, whatever state supports might be offered could be granted in the same way that they are offered to two maiden aunts taking care of a nephew or niece whose parents had died – the assistance would go to the child’s primary caregiver, and would not be predicated on any sexual relationship.
Moreover, the existence of de facto homosexual couples with children provides no more justification for legalizing same-sex marriage than the existence of de facto polygamous families provides justification for legalizing polygamy.
The debate over same-sex marriage is really a debate over the nature of marriage. Each side has a fundamentally different conception of marriage. And this, incidentally, is why there is no such thing as a “morally neutral” conception of marriage. Some people believe that the state should allow different people to choose which form of marriage they wish to have, and that this would be a way for the state to remain “neutral” on the issue. But, of course, the very idea that we can each choose our own form of marriage is itself a particular conception of marriage, so there is nothing neutral about it.
Ultimately, the debate regarding same-sex marriage involves a decision about what society understands marriage to be. Is it simply a close and loving personal relationship of our own choice, for which the state creates a legal status that is given symbolic recognition and certain benefits? Or is it a one-flesh communion, rooted in the nature of human beings rather than human will, which is intrinsically or essentially oriented toward mutual love-giving and life-giving? That is the question that our society—and, therefore, each of us—must answer.