Earlier this year, I was part of a Constitution Day panel discussion on same-sex marriage at Rutgers University. With seven panelists in a 90-minute program (four in favor of same-sex marriage and three opposed), we were each given just a few minutes for opening statements. I decided to make ten short observations, each of which could prompt more discussion afterward. Below are eight of those observations. (I omit two of them that were narrowly focused on the title given to our forum.)
1. The ultimate question about the recognition of same-sex marriage is for the whole society to decide, not for judges on putatively “constitutional” grounds. It is a “constitutional” question in quite another sense—that is, it is a constitutive question, about an institution and a relationship that is pre-political, foundational of society itself, and even more basic than our constitutions or political institutions. Therefore the question should always be referred to the people themselves at the polls—and not decided by their legislators, let alone by judges.
2. In deciding the basic question, people should ask themselves, what is marriage? For it is a thing with a nature, and a purpose. Marriage has always been understood, throughout human history, as a comprehensive union of a man and a woman, grounded in their complementary natures—a couple of the kind that is capable of generating offspring, and being father and mother to them. The law of marriage has always fostered and protected this singular kind of relationship that is capable of natural parentage, and the only relationship fully capable of parentage of any kind, if “fathering” and “mothering” are understood as distinctive contributions. Were it not for the fact that the sexual union of men and women regularly produces children, marriage would not exist at all. Its existence and its character are in accord with the nature of that union.
3. Same-sex marriage advocates have so far been unable to give an answer to the question “What is marriage?” that does not result in the complete collapse of all shape and form to the institution. That is to say, if men can marry men, and women marry women, we no longer know what the institution is, or what it is for, or what its boundaries are, or who is to be ruled in and who is to be ruled out as eligible to participate in it. Polygamy is back; polyamory is in; even incestuous relations are impossible to condemn. This is not a slippery-slope argument. It is the observation of an explosion bursting a levee with a wall of water behind it.
4. Such a change to the institution of marriage does indeed affect everyone. Our society has already done great damage to the institution of marriage thanks to easy divorce; thanks to abortion, contraception, and a widespread moral relativism about relations between the sexes; and thanks to social policies that make fatherhood optional when children come along. Marriage needs shoring up, not a “redefinition” that is actually a destruction.
5. Some advocates of same-sex marriage are “marriage abolitionists,” who see the ultimate goal as a legal order that has no category called “marriage,” and same-sex marriage as a way station on that road. They at least know where they are going. But it is not a destination we should seek. Marriage between men and women makes families, and it is right and proper for the law to foster and protect it.
6. A common argument in favor of same-sex marriage is that laws against it are just like the old Jim Crow laws against interracial marriage. In 1967, the Supreme Court struck down such laws, calling the right to marry a “fundamental freedom.” But those laws interfered with marriage by introducing an irrelevant ingredient—race—as though it were a necessary one. That is, those laws used state power to redefine marriage, a natural institution, for artificial purposes. Now, it is the advocates of same-sex marriage who wish to use state power to redefine marriage, to make the word mean something new and thus change its nature, by removing its central ingredient, the coming together of a man and a woman to make a family.
7. That 1967 decision of the Supreme Court was universally accepted, practically without a peep of protest, because every decent person would have been ashamed to argue that blacks and whites cannot marry. No denunciations of the decision came from any pulpits. It will not be so if same-sex marriage is nationalized by the Supreme Court. It will be Roe v. Wade all over again. Every growing, thriving, and theologically flourishing religious community in America today is part of the movement to defend the historic understanding of marriage, and they won’t be surrendering their principles. Their theologies may differ, but they share a common moral reasoning about the nature of marriage. And the defense of marriage can hardly be called an “establishment of religion” when it is agreed to by evangelical Protestants, Catholics and Orthodox Christians, and Mormons, Muslims, and Orthodox Jews alike.
8. These diverse believers also share a quite reasonable fear that in a country that has adopted same-sex marriage, their religious liberty is threatened. For believing what their traditions have always believed, they will be condemned as bigots, and subject to discriminations and pressures. Religious dissenters from the new dispensation, in many tens of millions, will be second-class citizens, and will be chased out of many professions and avenues of business if they will not abandon what their faiths teach them about marriage. Their hospitals, schools, and charitable organizations will be pressured to drop their religious scruples, and to silence their moral witness.
So, I concluded, the destruction of marriage as an institution, its replacement by we-know-not-what, and a mortal blow struck at the religious freedom that our country has always prized, are prices too high to pay for this revolution in the law of marriage. The American people know this, and that’s why they’ve gone to the polls and defended marriage every time they’ve been asked. We should keep asking them, I said.
One of the other speakers on the program was Hayley Gorenberg, an attorney with Lambda Legal, which actively litigates on behalf of same-sex marriage. Ms. Gorenberg spoke before I did, and in her prepared remarks said the following about the alleged injustice of “walling people out of central rights”:
The first [same-sex] marriage cases, if you look them up in law school textbooks, they’re short, they are settled in a matter of a couple of sentences, and you have judges saying things like “well, I looked in the dictionary, and this is what it said marriage was.” We’ve moved a long way from then. We have further to go. . . .
In terms of what the government may say about whether gay people can have their full rights, there is a core, very-easy-to-understand question about who’s getting hurt here and is anybody getting hurt, by giving people their equality. And the fact is, that nobody else’s marriage is going to be hurt or has been hurt by gay people having their equal rights to protect their families as others want to be protected, to protect their children as others want to protect their children. Tradition is not enough to sustain discrimination. Never has been, never should be, under the Constitution. It wasn’t enough to sustain discrimination in marriage based on race, it wasn’t enough to sustain discrimination in marriage that said women should be property, even though all of these things were traditional. Tradition falls when we truly engage with these factors and ask ourselves the question.
In the Q & A that followed prepared remarks by the seven speakers, I reiterated my third point above, that when marriage is destroyed and rebuilt in order to accommodate same-sex couples, there is no principled basis on which to limit marriage to couples. Particularly if the change comes about in courts of law, which prize consistent reasoning by analogy, the precedent of same-sex marriage will mandate, by parity of reasoning, the legalization of polygamy, polyandry, and polyamory.
Following this repetition of my argument, Gorenberg responded as follows:
With regard to the slippery slope, that’s the burgeoning [sic] of the dam, or you know, whatever it might be, if we draw out our metaphors about what it would mean to let same-sex couples marry, should they choose to, these rankings of incest and polygamy and where does it stop?—well, where it stops is when you actually look at the governmental definition of marriage, you know, as it’s laid out.
It is a binary institution, okay, it’s a two-person institution, which means that our marriage laws are drawn up to talk about all kinds of substitute decision-making, custodial choice, that kind of thing, so that if, for instance, there’s a couple that are married, and one of them dies, who gets custody of the children? Generally, you know, it’s the other person in the marriage. If there is somebody who dies intestate, and they don’t have a will, what happens? You know, you look to the other person in the marriage. If somebody’s incapacitated and decision-making needs to happen in the hospital, you look to the spouse. If there were seventeen spouses, that would be entirely unclear. That’s not how our marriage laws are drawn up. They’re drawn up, it’s a binary institution. Something else like polygamy is something else. So when we’re talking about something like entrance into marriage on an equal footing, we’re talking about entry into a binary institution, and a whole raft of laws that feed into marriage recognize that that is the case.
The attentive reader will already have noticed Gorenberg’s self-contradiction. Alas, time ran out in our brief program at Rutgers before I could regain the floor and point it out to her.
She had begun, in her prepared remarks, by calling on a standard of “rights” that cannot be defeated by appeals to “tradition.” And she had mocked judges who, in the early decisions on the case for same-sex marriage, had simply turned to a dictionary definition of marriage.
Yet, in her response to my point about plural marriages, Gorenberg herself turned immediately to tradition and to received definitions. Marriage just is a “binary institution,” she asserted, and changing that fact would entail all sorts of inconveniences. (The historic existence of polygamy in many places is proof that these inconveniences are not insurmountable, but this did not slow her down.)
Why mere tradition was now owed such automatic allegiance, she did not pause to explain. Now the prospect of altering a “whole raft of laws” associated with marriage filled her with horror and incredulity. She seemed quite oblivious of the fact that she was making my argument for me. Where was her concern about changing all the details and complexities of a forest of family law planted thick with assumptions about husbands and wives, mothers and fathers, always of opposite sexes?
In her nimble way, having shed the drag-chute of principled consistency, Hayley Gorenberg demonstrated the great strength of the movement for same-sex marriage. She did not have anything to offer in answer to the questions “What is marriage? What is it for? What are its boundaries? Whom should it include?” She does not need answers to such questions. All she needs is an argument for the moment, for the cause, for the victory she wants right now. If her argument is all sound and fury, signifying nothing, that is not her concern. The cause is self-justifying.
With the institution of marriage and the future of the family on the line, the rest of us don’t have that luxury. And perhaps the race will not go to the nimble, but to the slow and steady.