In February 2010, Oxford University Press will publish my book FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION AND THE CONSTITUTION. What follows is a brief extract from the chapter on same-sex marriage. Although I address the distinction between marriage and civil unions elsewhere in the chapter, I think the arguments against the pending Illinois civil union bill are the same ones standardly made against same-sex marriage.
As we examine the standard arguments against same-sex marriage, we must keep two questions firmly in mind. First, does each argument really justify legal restriction of same-sex marriage, or only some people’s attitudes of moral and religious disapproval? We live in a country in which people have a wide range of different religious beliefs, and we agree in respecting the space within which people pursue those beliefs. We do not, however, agree that these beliefs, by themselves, are sufficient grounds for legal regulation. Typically, we understand that some arguments (including some but not all moral arguments) are public arguments bearing on the lives of all citizens in a decent society, and others are intra-religious arguments. Thus, observant Jews abhor the eating of pork, but few if any would think that this religiously grounded abhorrence is a reason to make the eating of pork illegal. The prohibition rests on religious texts that not all citizens embrace, and it cannot be translated into a public argument that people of all religions can accept. Similarly in this case, we must ask whether the arguments against same-sex marriage are expressed in a neutral and sharable language, or only in a sectarian doctrinal language.
Second, we must ask whether each argument justifies its conclusion, or whether there is reason to see the argument as a rationalization of some deeper sort of anxiety or aversion (“animus”, to use the language of Romer v. Evans).
The first and most widespread objection to same-sex marriage is that it is immoral and unnatural. Similar arguments were widespread in the anti-miscegenation debate, and, in both cases, these arguments are typically made in a sectarian and doctrinal way, referring to religious texts. (Anti-miscegenation judges, for example, referred to the will of God in arguing that racial mixing is unnatural.) It is difficult to cast such arguments in a form that could be accepted by citizens whose religion teaches something different. They look like Jewish arguments against the eating of pork: good reasons for members of some religions not to engage in same-sex marriage, but not sufficient reasons for making them illegal in a pluralistic society.
A second objection, and perhaps the one that is most often heard from thoughtful people, insists that the main purpose of state-sanctified marriage is procreation and the rearing of children. Protecting an institution that serves these purposes is a legitimate public interest, and so there is a legitimate public interest in supporting potentially procreative marriages. Does this mean there is also a public interest in restricting marriage to only those cases where there may be procreation? This is less clear. We should all agree that the procreation, protection, and safe rearing of children are important public purposes. It is not clear, however, that we have ever thought these important purposes best served by restricting marriage to the potentially procreative. If we ever did think like this, we certainly haven’t done anything about it. We have never limited marriage to the fertile, or even to those of an age to be fertile. It is very difficult, in terms of the state’s interest in procreation, to explain why the marriage of two heterosexual seventy-year olds should be permitted and the marriage of two men or two women should be forbidden – all the more since so many same-sex couples have and raise children. As it stands, then the procreation argument looks two-faced, approving in heterosexuals what it refuses to tolerate in same-sex couples.
Sometimes this argument is put a little differently: marriage is about the protection of children, and we know that children do best in a home with one father and one mother, so there is a legitimate public interest in supporting an institution that fulfills this purpose. Put this way, the argument, again, offers a legitimate public reason to favor and support heterosexual marriage, though it is less clear why it gives a reason to restrict same-sex marriage (and marriages of those too old to have children, or not desiring children). Its main problem, however, is with the facts. Again and again, psychological studies have shown that children do best when they have love and support, and it appears that two-parent households do better at that job than single-parent households. There is no evidence, however, that opposite-sex couples do better than same-sex couples. There is a widespread feeling that these results can’t be right, that living in an immoral atmosphere must be bad for the child. But that feeling rests on the religious judgments of the first argument; when the well-being of children is assessed in a religiously neutral way, there is no difference.
A third argument is that by conferring state approval on something that many people believe to be evil, same-sex marriage will force them to “bless” or approve of it, thus violating their conscience. This argument was recently made in an influential way by Charles Fried in Modern Liberty. What, precisely, is the argument here? Fried does not suggest that the recognition of same-sex marriage would violate the Free Exercise Clause of the First Amendment – and that would be an implausible position to take. Presumably, then, the position is that the state has a legitimate interest in banning same-sex marriage on the grounds that it offends many religious believers.
This argument contains many difficulties. First, it raises an Establishment Clause problem: for religions today vary greatly in their attitude to same-sex marriage, and the state, following this argument, would be siding with one group of believers against another. (My own denomination, Reform Judaism, has long practiced same-sex marriage, and lobbied vigorously against the proposed constitutional amendment that would have defined marriage as between one man and one woman) More generally, there are a lot of things that a modern state does that people deeply dislike, often on religious grounds. Public education teaches things that many religious parents abhor (such as evolution and the equality of women); parents often choose home schooling for that reason. Public health regulations license butchers who cut up pigs for human consumption; Jews don’t want to be associated with this practice. But nobody believes that Jews have a right to ask the state to impose their religiously grounded preference on all citizens. Part of life with in a pluralistic society that values the non-establishment of religion is an attitude of live and let live. Whenever we see a nation that does allow the imposition of religiously grounded preferences on all citizens – as with some Israeli laws limiting activity on the Sabbath, and as with laws in India banning cow slaughter – we see a nation with a religious establishment, de jure or de facto. We have chosen not to take that route, and for good reasons. To the extent that we choose workdays, holidays, etc. that coincide with the preferences of a religious majority, we bend over backwards to be sensitive to the difficulties this may create for minorities.
A fourth argument, again appealing to a legitimate public purpose, focuses on the difficulties that traditional marriage seems to be facing in our society. Pointing to rising divorce rates and evidence that children are being damaged by lack of parental support, people say that we need to defend traditional marriage, not to undermine it by opening the institution to those who don’t have any concern for its traditional purposes. We could begin by contesting the characterization of same-sex couples. In large numbers, they do have and raise children. Marriage, for them as for others parents, provides a clear framework of entitlements and responsibilities, as well as security, legitimacy, and social standing for their children. In fact, the states that have legalized same-sex marriage, Massachusetts, Connecticut, Iowa, and Vermont, have among the lowest divorce rates in the nation, and the Massachusetts evidence shows that the rate has not risen as a result of the legalization.
We might also pause before granting that an increase in the divorce rate signals social degeneration. Often, in the past, women stayed married, enduring neglect and even abuse, because they had no marketable skills and no employment options. It is evident that one factor involved in modern divorce is the autonomy of women, and we should not lament the freedom of choice that increasing opportunities make available. We should also bear in mind the increased life span. By some calculations, marriages are not shorter today than they used to be, it’s just that people live so much longer. Just as many people go through more than one career these days, so they may go through more than a single marriage. This may not always be bad. The human life span is shifting.
But let us concede, for the sake of argument, that there is a social problem. What, then, about the claim that legalizing same-sex marriage would undermine the effort to defend or protect traditional marriage? If society really wants to defend traditional marriage, as it surely is entitled to do and probably ought to do, many policies suggest themselves: family and medical leave; drug and alcohol counseling on demand; generous support, in health policies, for marital counseling and mental health treatment; strengthening laws against domestic violence and enforcing them better; employment counseling and financial support for those under stress during the present economic crisis; and, of course, tighter enforcement of child-support laws. Such measures have a clear relationship to the stresses and strains facing traditional marriage. The prohibition of same-sex marriage does not. If we were to study all recent cases of heterosexual divorce, we would be unlikely to find even a single case in which the parties (or an objective onlooker) felt that their divorce was caused by the availability of marriage to same-sex couples. Divorce is usually an intimate personal matter bearing on the nature of the marital relationship.
The objector at this point typically makes a further move. The very recognition of same-sex marriage on a par with traditional marriage demeans traditional marriage, makes it less valuable. What’s being said, it seems, is something like this: if the Metropolitan Opera auditions started giving prizes to pop singers of the sort who sing on American Idol, this would contaminate the opera world. Similarly, including in the Hall of Fame baseball players who got their records by cheating on the drug rules would contaminate the Hall of Fame, cheapening the real achievements of others. In general, the promiscuous recognition of low-level or non-serious contenders for an honor sullies the honor. This, I believe, is the sort of argument people are making when they assert that recognition of same-sex marriage defiles or undermines traditional marriage, when they talk about a “defense of marriage,” and so forth. How should we evaluate this argument?
First of all, we may challenge it on the facts. Same-sex couples are not like B-grade singers or cheating athletes – or at least no more so than heterosexual couples. They want to get married for reasons very similar to those of heterosexuals: to express love and commitment, to gain religious sanctification for their union, to obtain a package of civil benefits – and, often, to have or raise children. Traditional marriage has its share of creeps, and there are same-sex creeps as well. But the existence of creeps among the heterosexuals has never stopped the state from marrying heterosexuals. Nor do people talk or think that way. I’ve never heard anyone say that the state’s willingness to marry Britney Spears or O. J. Simpson demeans or sullies their own marriage. But somehow, without even knowing anything about the character or intentions of the same-sex couple next door, they think their own marriages would be sullied by public recognition of that union.
If the proposal were to restrict marriage to worthy people who have passed a character test, it would at least be consistent, though few would support such an intrusive regime. What is clear is that those who make this argument don’t fret about the way in which unworthy or immoral heterosexuals could sully the institution of marriage or lower its value. Given that they don’t worry about this, and given that they don’t want to allow marriage for gays and lesbians who have proven their good character, it is difficult to take this argument at face value. The idea that same-sex unions will sully traditional marriage therefore cannot be understood without moving to the terrain of disgust and contamination. The only distinction between unworthy heterosexuals and the class of gays and lesbians that can possibly explain the difference in people’s reaction is that the sex acts of the former do not disgust the majority, whereas the sex acts of the latter do. The thought must be that to associate traditional marriage with the sex acts of same-sex couples is to defile or contaminate it, in much the way that eating food served by a dalit used to be taken by many people in India to contaminate the high-caste body. Nothing short of a primitive idea of stigma and taint can explain the widespread feeling that same-sex marriage defiles or contaminates straight marriage, while the marriages of immoral and sinful heterosexuals do not do so.
If the arguer should reply that marriage between two people of the same sex cannot result in the procreation of children, and so must be a kind of sham marriage, which insults or parodies, and thus demeans, the real sort of marriage – an argument often made1 – we are right back to the second argument. Those who insist so strongly on procreation do not feel sullied or demeaned or tainted by the presence next door of two opposite-sex seventy-year-olds newly married, nor by the presence of opposite-sex couples who publicly announce their intention never to have children. So the feeling of undermining, or demeaning, cannot honestly be explained by the point about children, and must be explained instead by other darker ideas.
If we’re looking for a historical parallel to the anxieties associated with same-sex marriage, we can find it in the history of views about miscegenation. At the time of Loving v. Virginia, in 1967, sixteen states both prohibited and punished marriages across racial lines. In Virginia, a typical example, such a marriage was a felony punishable by from one to five years in prison. Like same-sex marriages, cross-racial unions were opposed with a variety of arguments, both political and theological. In hindsight, however, we can see that disgust was at work. Indeed, it did not hide its hand: the idea of racial purity was proudly proclaimed (e.g. in the Racial Integrity Act of 1924 in Virginia), and ideas of taint and contamination were ubiquitous. If people felt disgusted and contaminated by the thought that a black person had drunk from the same public drinking fountain, or gone swimming in the same public swimming pool, or used the same toilet, or the same plates and glasses – all widely held Southern views – we can see that the thought of sex and marriage between black and white would have carried a powerful freight of revulsion. The Supreme Court concluded that such ideas of racial stigma were the only ideas that really supported those laws, whatever else was said: “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”
We should draw the same conclusion about the prohibition of same-sex marriage: irrational ideas of stigma and contamination, the sort of “animus” the Court recognized in Romer, is a powerful force in its support. So thought the Supreme Court of Connecticut in October 2008, saying:
Beyond moral disapprobation, gay persons also face virulent homophobia that rests on nothing more than feelings of revulsion toward gay persons and the intimate sexual conduct with which they are associated…Such visceral prejudice is reflected in the large number of hate crimes that are perpetrated against gay persons…The irrational nature of the prejudice directed at gay persons, who ‘‘are ridiculed, ostracized, despised, demonized and condemned “merely for being who they are” …is entirely different in kind than the prejudice suffered by other groups that previously have been denied suspect or quasi-suspect class status..This fact provides further reason to doubt that such prejudice soon can be eliminated and underscores the reality that gay persons face unique challenges to their political and social integration.2
These arguments against same-sex unions do not seem particularly impressive. We have not seen any that would supply government with a “compelling” state interest, and it seems likely, given Romer, that these arguments, motivated by animus, fail even the rational basis test.
- For example, the New York Times of October 14, 2008, the day I first drafted this paragraph, carried a letter from a Roman Catholic priest to this effect.
- Kerrigan v. Commissioner of Public Health.