November 21, 2008

For Whom the Bell Chimes

Justin Katz

Per his usual participation, msteven makes a fair and reasonable point:

The truth is that marriage is and always has been open to opposite-sex couples that are not open to children. I agree that the issue isn't JUST about the acceptance of homosexuality, and that allowing SSM is a significant change to the historical definition of marriage. But, as you said, "... circumstances sometimes eliminate the ideal", and I think it is reasonable for SSM advocates to argue that theirs is another circumstance that should be considered. I am NOT saying I totally agree with them or that SSM is 'constitutional’, but that it is about drawing a line.

There is a broad, bold line that must be crossed in order to admit homosexuals as another exception to the marital norm. Indeed, I've already stressed that we oughtn't belittle non-marital family forms. People do their best with what they're given, and forcing them into molds that don't fit as a condition of doing something good — such as caring for others' children or pledging mutual care to another adult — could hardly be to their or society's benefit. Those who incline toward admirable life structures oughtn't be discouraged.

Certainly, there are people who incline toward marriage, and I've long maintained that heterosexuals who enter into matrimony for all the right reasons don't need civil recognition, and changes to the civil institution will affect them not in the least. But such folks invest in the image of marriage in order to make the option as palatable, even as attractive, as it is responsible. The young man whose girlfriend discovers herself to be pregnant should have a clear social model encouraging him to associate his progeny with a stable household including their mother.

If marriage is all about "love," then those whom marriage is meant to change can quite reasonably reject the notion that they should marry on the grounds that they do not love enough. Too be sure, we're too far down this road, already, but same-sex marriage, as an accepted proposition, would solidify the principle as a matter of stark law.

Worse, however, is that "love" is ultimately a religious concept, and civil marriage, if disconnected from the purpose of encouraging potentially procreative pairs toward stable relationships, is really about benefits and mutual care, to which any number of family types could rightly lay claim. In that light, it should be clear that the "exception" of allowing non-procreative, heterosexual couplings to enter into marriage is hardly a compromise at all: It merely creates a simple definition of marriage toward a necessary purpose, without imposing arduous and implausible obstacles, such as fertility tests or procreation pledges as a condition of a marriage license.

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Thank you for the compliment, as I took it coming from an accomplished writer.

The only thing I disagreed with was where you said "... is that "love" is ultimately a religious concept". But overall, you sort of make my point which is that this is about drawing lines with regard to legal acknowledgement. But you do make a strong argument against moving the line and, in this case, changing the definition.

Posted by: msteven at November 21, 2008 5:41 PM


I also see it as line drawing.

I responded to your earlier question in the previous discussion.

See Chairm at November 21, 2008 7:42 AM.

To elaborate further:

SSM argumentation, when set apart from gay identity politics, is merely a call for protections which may be provided through a protective relationship status.

Marriage is a preferential relationship status due to its core meaning. The lines drawn around it reflect both the core or the essentials that distinguish marriage from non-marriage AND the societal preference for its core or its nature.

Gay union, on the other hand, is but one subset of the larger nonmarital category. That category is one-sexed and both-sexed. How woud gay union be distinguished from the rest?

There already are provisions for designated beneficiaries -- these have long-existed prior to the recent push form a merger of gay union with marriage.

A relationship status, at law, could be established based on bundling such protections as a way of society adjusting for the nonmarital trends that have accompanied the decline of the social institution of marriage.

But the priority ought to be to stop that decline, to strengthen the influence of marriage's core meaning, and to reverse, longterm, the trajectory of the nonmarital trends throughut society. It is a society-wide concern that cuts across generations.

The gay union thing is perhaps about some recognition of a segment of society that will remain outside of the marital category but also will not be dminished with a reversal of nonmarital trends. But such a relationship, if it is to be accorded a protective status in its own right, must be distinguishable from other unwed arrangements.

I do not think that "love" does the trick. Nor does sexual attraction or sexual behavior. Not in terms of legal recognition and, given the broader culture, not in terms of societal approbation.

As I said, if we set SSM argumentation apart from gay identity politics there is not much there. If we do make an accomodation for a protective status, or for easier access to protections without such a status, then, we would not set gay union on a collison course with religious liberty and freedom of conscience.

However, the current push for SSM is a push to merge gay union with the preferential status that is marital status. This will go one of two ways, I think.

1. Unjustifiably granting a special status to gay union, from among all other nonmarital arrangements, only for the sake of gay identity politics.

2. Unustifiably demoting marriage from its special status and putting it on par with nonmarital arrangements, again for the sake of idenitity politics.

Either way, the merger of gay union and marriage, at the legal level, is intended to influence the culture -- to create a reform of culture which would neutralize or even negate the role of the law in overtly encouraging moral behavior and honoring the deeply rooted traditions of society.

Such a merger is about more than even the social institution of marriage. It is about reshaping society in the image of a certain kind of identity politics, a kind that is gaycentric.

Marvin M. Ellison is one of the leading lights of the SSM movement and he has already moved beyond the merger of gay union with marriage. In a lecture he thinks the trend is not toward strengthening marriage but actually a sort of "reverse assimilation" or queering of society.

To quote:

About the assimilation question, some queer-identified marriage critics worry [...] about a strategy of mimicking heterosexuals. [...] Something far more important, far more interesting, and potentially far more transformative [is happening]. What is quite remarkable is that the majority heterosexual culture is increasingly coming to resemble gay culture.

Marriage is often described as a foundational social institution. Marvin Ellison has that precisely in mind as he seeks to demote marital status while elevating other less-than-foundational aspects of what has come to be known as the "sexual revolution". The idea is to lock-in the nonmarital trends both in terms of behaviors, on the aggregate, and the societal premises regarding human sexuality, long-term.

Drawing the lines around the core meaning of things like marrige and gay union should focus the mind. Instead we get a lot of vague bromides and plaintive pleas all based on identity politics. And I think that's about the worst basis for cultural change, for social policy, for lawmaking, for constitutional jurisprudence, and, essentially, for any form of line-drawing with regard to foundational institutions -- including marrige but not just marriage.

Consider if we went full ahead with such a basis and changed other institutions such as a free press, property, free enterprise. Our society would be drastically more government owned than even the society that was under the heel of communism and/or facism.

Posted by: Chairm at November 21, 2008 7:17 PM

Here's the link to a blogpost about Marvin Ellison's lecture.

Polyamory as part of the "justice agenda" .

Posted by: Chairm at November 21, 2008 7:23 PM


Why are you picking on me? I don't really have the time or share the zeal you have for this. I agree with some of what you say but not all of it. I'll just address this:

"Marriage is a preferential relationship status due to its core meaning. The lines drawn around it reflect both the core or the essentials that distinguish marriage from non-marriage AND the societal preference for its core or its nature."

I don't beleive marriage is based on being a 'preferential relationship due to its core meaning' as you say. I think it has become that for many over time and that is why many gay-rights advocates are so insistent on not having their relationships seen as less than 'preferred' in the legal context. Having said that, I see some of your points that a gay-union is not a 'marriage' - not at its current definition. I don't really care what Mr. Ellison thinks. For me, the issue seems to be primarily about the normalizing of the gay-identity. I see both some pros and cons to that but mainly, what I think the pro-SSM movement should do to gain credibility is to acknowledge that SSM is a dramatic chnage to the definition of marriage which has existed since time began. That current marriage laws are not discriminatory. Having said that, I don't agree with all anti-SSM arguments such as the religious liberty issue as I don't think requiring all religions to accept a civil institution is part of the deal.

Posted by: msteven at November 21, 2008 9:38 PM

While I responded to your comments, mstevens, I did not think I had picked on you.

Marriage is not a preferential status based on a preference for "straights".

The goal of the SSM movement is to use marriage to gain special status for gay identity, I agree with you on that.

But the merger of gay union and marriage is a replacement of marriage recognition, not an expansion of marital status.

Ellison's views make of the merger a prelude to flattening marital status -- extending SSM argumentation to its natural conclusion.

See, once society merges a subset of nonmarriage with marriage, it becomes hard to sustain a distinction between the now diluted meaning of marital status and the rest of the kidns of arrangements that are nonmarital.

Core meanings are what we draw boundaries around. But gay union, as put out there by SSMers, has no core meaning -- apart from gay identity politics.

Gay union is not based on openness to gayness, to use an analogy with procreation. And while procreation is entailed in the consent to marry (i.e. the marital presumption of paternity), there is no such legal requirement for gayness. No legal presumption. Nada.

But if gay union is merged with marital status, on the basis that anything that does not fit gay union must not be essential to the merged status, then, that pretty much undermines, if not abolishes, the basis for the presumption of paternity. It would make of "marital status" a nonsexual concept. And that opens it to the entire range of nonmarital arrangements -- sexual or not.

Posted by: Chairm at November 22, 2008 1:00 AM

It just seems like you have a "bone to pick" re: SSM and I just happened to be the 1st dog that came along for you to "pick" on. Some of the comments you've made don't seem in response to ones I've made.

I agree with you that marriage is not a preferential status based on a preference for "straights". I've already said I don't feel it is discriminatory.

My point was that within the context of the opposite-gendered definition, marriage is pretty much a civil right (albiet with a few caveats). And the argument that their relationships are just as or more worthy of having that preferential status as some opposite-gendered couples who are eligible to get it - is a reasonable point.

Posted by: msteven at November 22, 2008 4:52 PM

Justin, despite all of your spinning in circles, you have yet to demonstrate any evidence that marriage's "purpose" (as you put it) is to promote stable childrearing couples. That is your invention. One could just as easily argue that marriage's purpose is to promote stable couples, with or without children. But this argument isn't really about definitions, it's about policy.

Your emphasis on what marriage "means" is typical of a Catholic mindset (big C). And that's fine for theology. But when debating civil marriage -- policy and law matter, because definitions are always changeable in civil matters.

The policy arguments in favor of encouraging stable gay relationships seem to me to far outweigh your vague fears that the sight of gay marriages will result in fewer straight marriages.

How does gay marriage impact the decision of the "young man whose girlfriend discovers herself to be pregnant"? Because marriage is now about love and not stable childrearing straight couples?

Ok, how about allowing only gay couples who have children to marry?

Posted by: Pragmatist at November 22, 2008 6:10 PM


Calling the historical purpose and meaning of marriage "my invention" is patently absurd. It is clear in history, in social and cultural markers, and in the law.

It is similarly absurd to attempt to tease the meaning of marriage apart from its policy implications. The meaning determines the outcome of the policy. As I suggested, if the legally and culturally reinforced expectations around marriage are that couples that have created or intend to create new life will do so within the confines of the institution, then young couples will treat marriage, themselves, and their children differently than if marriage is a loose partnership founded on romantic notions.

The allowance of only gay parents into marriage would be an attractive compromise but for the difficulties of implementation. For one thing, if non-parental gays cannot marry, why should non-parental straights be able to? And if we exclude them, we foil the purpose of marriage, as I've presented it.

Marriage as traditionally defined is constructed simply and with a minimum of intrusion. There are no fertility tests, for example. That simplicity of message is critical to its utility.

Posted by: Justin Katz at November 23, 2008 9:00 AM

There already are protections for nonmarital families with children. They kick-in when nonmarital arrangements include children.

Posted by: Chairm at November 24, 2008 3:21 PM
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