Mollie and Andrea's Wedding

Last November, after my daughter Mollie informed me that she and Andrea had gotten engaged, I was moved to post an entry on this site ("Marriage: Scripture v. Morality" [November 14, 2006]). “Mollie and Andrea,” I wrote “are deeply committed to one another. They want to spend their lives together. Watching them over the past few years, it is easy to see why. They complement each other, take care of one another, respect each other, and love one another. They want to have children, for all the right reasons. In my experience, they are no different in their love, commitment, and aspirations than any of the other young couples whose weddings I have attended over the past half-century. But Mollie and Andrea cannot marry.”

Although conceding that the definition of marriage as limited to “a man and a woman” reflects traditional religious belief and customary practice, I reasoned that religious belief is never sufficient justification for a law in the United States and that one of our greatest achievements as a nation has been our willingness constantly to reexamine and discard discriminatory and unwise customs. I concluded that is wrong “for our government to discriminate against Mollie and Andrea in this manner.”

Although conceding that the definition of marriage as limited to “a man and a woman” reflects traditional religious belief and customary practice, I reasoned that religious belief is never sufficient justification for a law in the United States and that one of our greatest achievements as a nation has been our willingness constantly to reexamine and discard discriminatory and unwise customs. I concluded that is wrong “for our government to discriminate against Mollie and Andrea in this manner.”

On Sunday, Mollie and Andrea were married in Chicago. It was, in many respects, a traditional wedding. It was performed by a minister. It was at a beautiful venue -- the Newberry Library. There were many guests, from a wide variety of backgrounds, life experiences, and political and religious perspectives. There were touching and clever toasts, much singing, music, and dancing, and an abundance of laughter, tears, and joy. At the end of the wedding ceremony, in the only acknowledgement of the governing law, the minister, striking a perfect note of irony and levity, said that, “by the power not quite yet vested in me by the State of Illinois, . . .” The brides then kissed.

Since November, I have had many conversations with friends, colleagues, students, and even strangers about the definition of marriage. I very much want to understand why some people so strongly oppose the marriage of two people who love one another and want to spend their lives together, merely because they happen to be of the same sex.

Putting aside the narrowly religious arguments, which even most religious people recognize are an inappropriate basis for law in our nation, what it really comes down to is this: Some people fear that for our government legally to recognize Mollie and Andrea’s bond to one another would undermine the integrity of marriage as an institution.

What is this all about? Suppose a man wants to marry his cat. Well, why not? The answer, of course, is that marriage is between two people. To allow a man to marry his cat would be, well, absurd. It would make a mockery of marriage. The next thing you know, some woman will want to marry a tree.

Most of us, I’m sure, would agree that our government should not give legal status to a man’s “marriage” to his cat or a woman’s “marriage” to a tree. That would not be “marriage,” as we know it.  If we were to allow such “marriages,” we would make the very idea of marriage ridiculous.

Is same-sex marriage any different? To those who oppose marriage between people of the same sex, the concept of Mollie marrying Andrea seems as foolish and unnatural (and therefore as threatening to the institution of marriage) as a man marrying his cat or a woman marrying a tree.

I say this not to mock those who oppose same-sex marriage. To the contrary, I say it because I have no doubt of their sincerity or the depth of their convictions. But their reasoning, both moral and logical, is flawed. As one of my law professors taught me many years ago, law (and we are talking here about law) involves choosing wisely among competing analogies.

After the Civil War, we declared that discrimination against African-Americans is wrong. But for a century thereafter we thought discrimination against women a completely different kettle of fish. Discrimination against women was “natural.” It was more like discrimination against, say, young people. It wasn’t until forty years ago that we began to understand that discrimination against women is more like discrimination against African-Americans than we previously had thought, and we shifted the controlling analogy.

So, is Mollie marrying Andrea more like Mark marrying Alice or John marrying his cat? The very asking of this question might be taken as insulting (indeed, very insulting) to Mollie and Andrea. That is precisely the point.

Changing the controlling analogy entails risk. Recognizing that discrimination against women is “like” discrimination against African-Americans opens the door to new and sometimes disturbing questions. What about discrimination against the disabled? Against the aged? Against gays and lesbians?

Similarly, a decision to allow Mollie and Andrea to legally marry might raise unsettling questions about polygamy and even about the cat and the tree. But such questions are inevitable and healthy in a robust, ever-questioning, ever-evolving society. They are a fundamental and cherished part of our American history and culture. If we did not ask such questions, we would still burn witches, buy slaves, and deny women the vote. In the end, we must rely upon our deepest moral intuitions, our commitment to individual dignity, our belief that all persons “are created equal,” and our common sense to draw the “right” lines for our generation.

Finally, for those who might be curious, let me say just a word about the wedding itself. Although I cannot be objective about this, I’m reasonably confident that those in attendance found this a particularly moving celebration. What made it so moving, I think, was that Mollie and Andrea decided to marry not to gain the many legal benefits of marriage, which they are denied, and not to make a political statement, for they are not particularly political. What made it so moving was that Mollie and Andrea decided to marry for no reason other than their love for one another, their desire to commit themselves to one another, and their wish to make that commitment in the presence of their friends and loved ones. It was romantic, it was inspiring, and it was perfectly right, in every way. (Read the original post mentioned above)

Comments

[Political Umpire]

Perhaps unsurprisingly this post has generated an awful lot of traffic quite quickly. The fact that there are so many strongly held views either way suggests there are no simple answers. It seems to me:

1. There is no point in denying that homosexuality exists and we have, I hope, moved on from despising homosexuals just as we have moved on from despising people of colour (would that that had occurred after the civil war - I presume the learned professor is aware of Jim Crow etc).

2. Irrespective of marriage, there are real injustices in terms of property rights etc that are not simply confined to homosexuals. Inheritance laws that favour marriage discriminate not just against gays or unmarried heteros, but also people who live with family members etc for whatever reason. Those are not simply injustices in that they discriminate, but also they interfere with freedom of contract.

3. It would seem that that situation could be remedied by having a state-enforced contract conferring the same property and tax rights as currently obtain to marriage. It should be called something neutral such as a 'property sharing contract' and entitled each signatory to claim spouse's rights etc. It would not be available to cats or trees, for the simple non-pejorative reason that cats or trees are not legal persons. Nor children (their rights to parental support etc are already protected). All those currently legally married would be presumed to have signed such a deal.

4. That way, marriage would not be the business of the state. It would then be up to Churches and anyone else to authorise 'marriages' under their own terms, consistent with freedom of religion.

I based this idea partly on the French system. In France all marriages are secular, state procedures. Often couples then celebrate/take vows etc in Churches afterwards, but as far as the law is concerned it is the registry office signing that counts, nothing else.

http://cricketandcivilisation.blogspot.com

[Roach]

I love this innovating spirit that just wants to tinker with 10,000 year old institutions, as if they just accidentally got to be that way and are perfectly malleable.

Why, perhaps we can all start speaking Esparanto and raise our kids communually and abolish private property. I've got this great three point plan, you know.

This is like philosophisime of Diederot and Comte. It's failed miserably here there and everywhere, most notably in the France of the Revolution.

[FrankMCook]

I'm not sure what I said that led you to conclude that I thought this. Let's take them one at a time.

Health care directing. The question here is absent a power of attorney who should be able to authorize medical care for someone who is not capable of voice their own wishes. We allow a spouse to do that.

Intestate succession. The question here is absent a will who how should we assume a person would wish to divide his property. We assume they would divide it between their spouse and their children.

I have trouble seeing what social policy would be harmed by the creation of a simple procedure which would allow a couple to walk into a court house and be recognized as a couple for purposes of determinations such as these. In fact, I see an obvious social purpose that would be enhanced. We require blood testing to obtain a marriage license in order to prevent the spread of sexually transmitted disease. Imposing a similar requirement on a same sex procedure would have the same public health benefit.

As for the argument that the prohition of same sex couple recognition is about child rearing, I simply do not think it is anything more than political cover. No one would say that a widow should not be able to move back home with her mother because her children would be in a home with two females or that a widower could not move in with his brother because his children would be in a home with two males.

[LAK]

Men are more promiscuous then women? Don't you read the paper Roach? For every guy out there that is F-ing, there is a woman to F him. The number of average sex partners that men and women have is the same as a matter of logic.

Your desire to hang onto social institutions that developed before the enlightenment, bnefore electricity and basic understanding of modern science is one of the funnier things about this board. Do you like to get dressed up in the clothing of English nobles too and call your girlfriend a serf as you F her? Honestly, where do they make people like you Roach? where did you grow up? Who is your daddy? Why did he make you like you are?

[David]

It may be that today women and men are equally promiscuous (although I seriously doubt it), but historically the pattern was for a smaller group of women to satisfy a larger group of men through prostitution or just being especially promiscuous.

During the Middle Ages this reached the point where the Church actually promoted prostitution as a way of safeguarding the chastity of the vast majority of women through the defilement of a small minority of women.

Obviously this extreme is unjustified, but it doesn't change the fact that throughout most of history men have been generally more promiscuous than women.

Research seems to indicate that today men report 2 to 4 times as many sexual partners as women. You might say that this is a statistical impossibility, but it is easily explainable by considering that women with large numbers of partners lose count and underestimate, or are afraid to admit the number of partners they have had, skewing the results for women towards the less promiscous majority. Of course it may also be the result of women in general under reporting, but it is hard to dismiss both the survey results and a long accepted historical and anthropological record of higher male promiscuity based simply on this assumption.

I'll certainly admit though that women have been catching up. Why this is generally accepted as a good thing I am not sure.

[Roach]

LAK, there is a difference of median and average. One woman can have sex with 20 guys. 19 other women can have sex with each of those men (including the promiscuous one). The average is the same. But the median for the women is 1.05 or so and the men are each two. Have you not heard of whorehouses in all your worldly travels?

No we don't dress up like that, but I'll give it a shot and give you a full report. Sounds like a combo of a Rennaissance Faire and Burning Man. I grew up in the Sunshine State if you must know, and grew up in a normal, suburban, nuclear family. My parents earned a reasonably good living, and we're a pretty close family. I know you want to psychopathologize everyone who disagrees with you with your pop-Freudian nonsense, but I don't think there's any there, there, as they say. I also wonder why you resort to this juvenile and uninformed style of attack. Are you particularly right-wing and traditionalist when you're not getting any?

Speaking of pre-enlightenment social institutions, do you want to get rid of the common law, the jury trial, separation of powers, Shakespeare, the criminal law, etc.? Along these lines, a certain group of zany mid-20th Century mass murderers used to mock liberalism and human rights as the detritus of Christendom so to be superseded by a new way of life based on the state-of-the-art principles of authoritarian leadership, state control of civil society, and the celebration of power connected with the will of the people--a la Rousseau's general will concept and some faux paganism.

[David]

Of course another obvious point is that the number of mens' sexual partners is limited by the number of willing women partners.

I think it is obvious to anyone of at least a partially open-mind that if women were as inclined toward promiscuity as men the total number of sexual partners for each sex would be much, much higher.

[Lackawanna Blues]

LAK,

You are correct that the average number of opposite-sex partners for men and women in a closed population must the same.

But that's not what Roach said. Roach said men were more promiscuous. This is the difference between averages and medians. The median male could quite easily have significantly more sexual partners than the median female. One reason might be that there's a small minority of females that have a very large number of sexual partners -- some call them prostitutes (and there are a lot more female prostitutes than male prostitutes -- or you could say that all men are prostitutes who work for free). So the average number of sex partners must be the same between the two groups, but the median could be quite different.

[Lackawanna Blues]

Brother Roach and I got to the same point at the same time.

Must be something about that UofC education that causes thinking.

[Catapult]

I think we can all (finally) agree on one thing: Everyone on this board would definitely have higher "sex-partner" numbers if there were women willing to avail themselves.

[LAK]

Roach I'm with you on the medians, we are U of C men. The median is not a very informative number in the example you give. You have 20 guys, each of whom sleeps with the prostitute. Then you have 19 non prostitute women, each of whom sleeps with one guy. So of the 20 guys, you have 19 who have 2 partners, and 1 who has just 1. And of the 20 women you have 19 that sleep with one guy, and one woman who sleeps with 20.

The median for women is clearly just 1, while the average, the far more useful number for statistical purposes is 1.95. The median for men in this situation is 2. But with the same average: 1.95 partners. I'm not sure how this plays out in the big picture, though I wouldn't be surprised if the median approaced the average once you get enough data points. The fact is that on average, men and women have and have always had the same number of sex partners, unless you don't count prositutues as women.

And Roach, I'm all for preserving institutions we all can agree are still relevant after all these years and the enlightenment, and the discovery of electricity and mordern science, But when a large portion of society is resisting crusty religious based institutions, and their resistence has nothing to do with you other than tickling your bigotry, it might be time to amend those institutions. It's not all crusty institutions that need to be changes, just ones that are overly restrictive and at odds with the lives a very large number of citizens actually lead.

If you can show me lots of people who think Shakespeare is terible or that common law has no use anymore, then we should discuss amending or getting rid of them. That's the game Roach, deciding which institutions need revision or abandonment, and which don't. The fact is, you have little other than pure bigotry on your side and a coupel of specious arguments claiming that same sex marriage would somehow undermine hetero marriage, which are laughable arguments. I'm secure in my heterosexuality and desire to marry and woman, and know that whether men can marry men or women can marry women has nothing whatsoever to do with whether I will or won't get married and to whom. My question is, are you comfortable with your sexuality? I doubt it, becasue it is completely off the wall to be concerned about the erosion of hetero marriage just because some small portion of the population wants to spend the rest of their lives with a member of the same sex.

P.S. you have me confused with Kimball Corson. He's the older guy on the boat. I'm the plaintfifs lawyer.

[LAK]

Do you guys go to prostitutes a lot? Do you know lots of men who do. I know two guys who have ever been to a prostitute. I'm guessing that the median is very close to the average when you aggregate the total population. And unless you have evidence otherwise, I'm sticking with it. Just another patriacthical myth in my book. Women are just as big of sex pots as men are. And there may in fact be far more prostitutes in the world than men who actually go to them, so your median explanation doesn't hold much water with me unless you have evidence of this. If there are two prostitutes for every one man who goes to one, your conjecture is in trouble.

[LAK]

Oh not me Catapult. I'm a secular humanist with very judeo-christian values. As a wealthy and fairly good looking guy, women avail themsleves of me quite often. I save sex not for marriage, but for meaningful realtionships at least. I know it may seem strange, and I know I am a rare male these days, certainly a rare non-religious male, but you can arrive at many judeo-christian ethics, like humilty, monogamy and saving sex for love, on your own without submission to the irrational authorty of a theistic god.

[David]

So what you are saying is that women would be more promiscuous if only there were more good looking secular humanists who post on faculty blogs and refuse to submit to the irrational authority of theistic gods?

[Roach]

Lak says, reasonably enough, "I'm all for preserving institutions we all can agree are still relevant after all these years and the enlightenment, and the discovery of electricity and mordern science, But when a large portion of society is resisting crusty religious based institutions, and their resistence has nothing to do with you other than tickling your bigotry, it might be time to amend those institutions."

But this "reasoning" gives us no basis with which to pick and choose, and also seems to contradict the across-the-board condemnation of tradition in your earlier post.

As the Poet said:

Fools! who from hence into the notion fall
That Vice or Virtue there is none at all.
If white and black blend, soften, and unite
A thousand ways, is there no black or white?
Ask your own heart, and nothing is so plain:
'Tis to mistake them costs the time and pain.

Vice is a monster of so frightful mien,
As to be hated needs but to be seen;
Yet seen too oft, familiar with her face,
We first endure, then pity, then embrace.

[Kimball Corson]

Frank M. Cook raises a sizeable laundry list of legal issues regarding marriages that would need to be resolved for well considered civil unions. Some for sure evidence one or more state interests, not so much in marriage or civil unions per se, so much as the narrow subject of each of those issues. Also, concededly, some policy issues are involved. That all these issues could be well worked out or resolved for civil unions is clear as a legal matter. This stuff is not rocket science. Where there is a modicum of will, there is clearly a way here. The problem is those issues become points of contention for the interfering nay sayers I have described and the happiness of too many then falls into the political arena where nay sayers legal positions too nicely align with their narrow and corny moralistic sentiments to block and interfere with the happiness of others. However well so disguised, the real issue is as I described it in my earlier post. The behavior of too many here is like that of chimpanzees at one remove dressed up in intellectualizations and legalese. Truely good contrary and substantive arguments are scare to the point of nonexistence.

[jimbino]

When Roach states that marriage as we know it has been going on for 10,000 years, he must be thinking of the Code of Hammurabi or the Gilgamesh Epic, because you sure can't find it in the Bible.

[Kimball Corson]

LAK,

In an early life, I too was a plaintiffs' lawyer and a quite successful one at that, not just, as now, an older guy on a boat.

From the jungles of El Salvador,

[Kimball Corson]

Roach,

The Poet, while incredibly bright, was not well educated per se and could not have had the advantage of reading and understanding Neitzsche's Beyond Good and Evil. Few now hold to black and white moral positions. The facts, as every good lawyer knows well, matter too much for that.

[Roach]

It's true Kimball. You're a regular Uber-man yourself over there. Just the other day, someone told me that America had some moral obligation to suspected terrorists. I'd rather they be tortured in public. And then I thought back to some college philosophy course, "hey, it's not all black and white." See, we can do what we want, there is no right and wrong, and there's no reason to hold to an effete liberalism out of habit or some vague notions of symmetry and fairness. Nietzsche certainly believed in that, no?

[Kimball Corson]

Not would be, but women are in fact more promiscuous when they truly enjoy themselves in good fun-loving and relaxed company. I fare well enough with younger women (thirty something) even though I am bald and ancient (66, actually), to the point of being disgusting in my own view.

[Kimball Corson]

Roach,

The problem is less that there is no good and evil in some absolute extreme sense than it is that we are not at all well equiped to discern it most of the time and should therefore be very slow to throw our stones. How we think and therefore our intentions are not always clear even to us. Also, the ultimate consequences of our acts are seldom obvious or clear. Now if a terrorist is caught red-handed with his terrorist pants down, then perhaps we can stone him to death with glee, but it is not clear what interests are advanced in doing so, but it certainly satisfies our spirit of Revenge. Of course, his brothers then, in the same spirit, have to kill us to preserve their honor and so the boring killing cycle goes. As for being an Uber-man myself, I wish. I struggle to keep my head above water, both literally and philosophically.

[LAK]

Kimball, you are my hero. Didn't mean to diminish your life's accomplishments or date you by my comments. I apologize.

Roach, no individuals decide, society decides in the aggregate for the most part about which institutions it supports and perpetuates. All individuals can do is add an element of drag to slow down the change. That is why I find your resistance to same sex marriage/ domestic partnership so odd. There are hundreds of thousands of same sexx couples already living together like married people, some raising kids quite successfully. They really have nothing to do with me or you or the institution of hetero marriage. There is nothing you can do to change that. Sure you can cause the law to slow down change for a while, but the Hegelian in me will tell you you're just prolonging the inevitable.

"In this life, in this life, in this life, in this oh sweet life we're coming in from the cold"
[It's you, it's you it's you I'm talking to now]

[Lackawanna Blues]

LAK,

If you are right that "society decides in the aggregate for the most part about which institutions it supports and perpetuates" then you must agree that our society has decided that gay marriage is not marriage (or at least not marriage worth state recognition and protection). We have state and federal laws passed by plebiscite and representative governments saying as much. What other way does society express itself? Surely not in Anthony Kennedy's incomprehensible rambling in a majority Supreme Court opinion or in the equally confused ravings of SJC?

[LAK]

No in practice. The hundreds of thousands of same sex couples and families out there that already live amongst us, legally and in peace, just without the same rights as hetero couples/families. They're there. You can't do anything about them as much as you'd like to pass bigoted laws. And they too will be accepted as equals, just like women, just like blacks one day as a matter of basic justice and equal rights.

There was a time when the highschool educated majority opposed civil rights for blacks, which was also overcome eventually by social reality. Same with women. You missed the point. It's not about what law exists or what the majority thinks at any given political measurement, it's about what exists in reality and where we are headed as a society of free people. Cry as you might, gay couples are living out in the open as functionally married couples without apology, even raising kids together - that is reality and its only going to get more common as the vestiges of bigotry melt away over time.