November 9, 2007

Questions and Answers on Same-Sex Marriage

Justin Katz

After some brawl-in-the-schoolyard circling, commenter Pragmatist and I have started up another round of the same-sex marriage dialog on Anchor Rising, thus far in the form of a question and answer exchange. Thinking the exercise worthwhile (and curious to see how far we'll get with it this time), I considered a post of its own to be justified, beginning with his first question:

... why shouldn't the state encourage monogamous homosexual relationships? Unless you are prepared to take the position of the president of Iran that homosexuals don't exist, then aren't strong, stable, monogamous homosexual relationships better for society than the opposite?

To which I replied:

I'm not opposed to states' seeking to do so, as long as they structure the new institution of same-sex unions from the ground up, without reference to marriage. (When constitutional amendments have been proposed, I've always backed versions that would leave that possibility open.) My reasoning (on the secular/civil side) is that modifying the definition of marriage in order to encompass same-sex relationships will undermine the institution as it exists, thus diminishing the states' encouragement of stable, monogamous relationships between heterosexual couples (which, after all, have the added consideration that they can produce children with minimal intention).

I've long said, by the way, that my calculation might change if the pro-SSM movement took up the cause of tighter divorce laws. No takers from your side, yet.


Yes, I have heard this argument many times. But I have never heard a convincing unbundling of this amorphous concern: "modifying the definition of marriage in order to encompass same-sex relationships will undermine the institution as it exists." How? How does encouraging MORE stable relationships undermine the institution? Perhaps the struggle of homosexuals to establish this right despite overwhelming odds should reinforce the importance of the institution for heterosexuals? Maybe heterosexuals should be inspired by the struggle and value what they have already even more?

I'll start by saying that I do think there's likely been positive development among heterosexuals as the struggle over same-sex marriage has raged, but not because they are inspired by homosexuals' striking belief in the institution. Rather, in formulating their own positions on the issue, at least those who don't take their views directly from the oracles of popular culture are spurred to consider what marriage means to them. What the institution is for, and what that meaning requires of them.

That really is the central question: What is marriage about? Reformulated for use in discussion of public policy, the question is: What is the purpose of the government's recognition of it? By changing the essence of what marriage is, and what it hopes to accomplish, same-sex marriage would undermine the institution in three interrelated ways:

  1. Equal rights abide no arbitrary boundaries. If we enshrine into law the principle that marriage is the recognition of intimate adult relationships, defined according to the proclivities of the individual, all subsequent distinctions are fundamentally arbitrary. Polygamy and adult incestuous relationships will follow. Marriage as the encouragement of a particularly stable form of grouping will become meaningless.
  2. We won't abide the government in our bedrooms. Our culture still has strong presumptions about male-female relationships. Yeah, men and women can be friends, even roommates, but there are boundaries that begin to raise suspicions — notably, living together. For the most part, those suspicions have protected marriage from corruptive arrangements of pure self-interest. The gay rights movement has, to some extent, raised suspicion about platonic same-sex relationships, but were same-sex marriage to become available, I think it likely that heterosexuals would exploit the arrangement for economic reasons. And frankly, I don't see why they shouldn't. If the civil impetus for recognizing marriage is to encourage mutual care of independent citizens (allowing various assumptions of trust and rights such as the famous hospital visits), then there's no reason pairings that don't involve sex shouldn't be included, whether they involve friends or relatives.
  3. Too many won't abide their own children. The most important of the consequences of codifying the romantic, mutual-intimacy-centered vision of marriage into the law is the competing vision that it displaces: that marriage is fundamentally a desirable relationship between a man and a woman because their intimacy can result in the birth of children. Our society gives marriage weight in order to create a cultural expectation that will draw those who might be inclined to shirk their responsibility into stable families. If marriage and the potential of procreation aren't intrinsically linked, then there is less pressure on a man to stick with the mother of his children (or a woman their father) for the family's benefit, even if fleeting romantic feelings don't fulfill his (or her) fantasies.
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Dear Justin,

The following is alternatively laughable and creepy:

Polygamy and adult incestuous relationships will follow

Let me guess, gay married couples will now roam the earth like vampires trying to convert everybody. The state has a defined health interest, and don't abuse our courts interest, in keeping the incestuous and the "multiple" out of bounds.

2. Again, let me clue you in: when 2 folks over 70 years old get married, there's not going to be a lot of sex. On the other side, when a 75 year old guy marries a 22 year old girl, what is that about?? MOst marriages for most of the history of the planet were arranged business deals.

3. Have you looked at the divorce rate?? No one's feeling the pressure now. Nobody cares. If you wish to tighten divorce law so folks look at the decision a lot more thoroughly in the first place, I'm with you.

Let me really go out on a limb and offend people:

I think a child who grows up in a 2 parent gay household is better off than a child that grows up in a single parent household led by either sex.

Posted by: Bobby Oliveira at November 9, 2007 10:47 AM
I think a child who grows up in a 2 parent gay household is better off than a child that grows up in a single parent household led by either sex.

Why? Is it because that child was ripped from a 2 parent non-gay household and transplanted to the 2 parent gay household, whereas the other child wasn't transplanted, just ripped from the 2 parent non-gay household?

Posted by: smmtheory at November 9, 2007 12:21 PM

This was a very interesting and well written post.

First, let me respond to Bobby O’s last comment on the previous related post.

Give me an example of a time and place where marriage was something other than opposite sex? The arrangement of marriages has nothing to do with the definition of it. That’s apples and oranges.

Yes, there has been an evolution of the ‘voter’ and it has moved towards liberty. I am not saying there isn’t some merit to the argument that “marriage” or some legal acknowledgment should be given to same-sex couples. What I am saying is that it is not an entitlement based on liberty and that allowing same-sex people to marry is a significant and unprecedented change in the current definition.

Also, what exactly constitutes unfairly “capturing” women? (or men, for that matter)

Regarding this post, I have a few comments on the ways it would undermine the current institution.

Equal rights abide no arbitrary boundaries:
This does not work for me. The ban on incestuous relationships is already an arbitrary boundary within the current definition. It is a boundary based on moral grounds. Same-sex would be yet another arbitrary line removed but one that would significantly change the current definition. Also, I don’t think one can assert that an opposite-sex grouping is necessarily more stable than a same-sex one.

We won't abide the government in our bedrooms.
I also don’t think is completely fair. It implies that arrangements that are not intimate would increase by allowing same-sex couples to marry by adding a reason to exploit the law for the purpose of mutual care. Yet the same impetus already exists for opposite-sex arrangements. To me, this is sort of a stereotypical ‘liberal’ argument in that something should not be allowed due to the possibility of exploitation for self-interest. The pro-SSMer could argue that allowing it would decrease the number of corruptive non-intimate arrangements between gay and straight opposite-sex persons.

Too many won't abide their own children.
I agree with Justin here. While the procreation is not a ‘gotcha’ in this debate, the truth is that marriage does provide the starting point for procreative results between man and woman. That is something same-sex relationships can never duplicate. Yes, opposite sex couples who cannot or choose not to procreate can marry. But it is the opposite sex nature that provides the opportunity for procreation and therefore, is part of the very nature of marriage. There are reasons to include same-sex couples into the fold and I’ve acknowledged those. But that does not change the fact that it would significantly change what marriage (not “marriage law”) has meant since its inception.

Posted by: msteven at November 9, 2007 12:58 PM

Dear Smmtheory,

I'm adopted, my sister works for DSS in Massachusetts. Unless the situation is totally beyond the bounds, I don't want anybody ripped from anywhere.

What am I arguing is it is the roles that matter not the sexes. One time stressed parent playing both roles, not to some some don't do an excellent job, has a much tougher road than 2 loving parents who both have a role.


There are all kinds of examples in the anchient world including the progression of Popes from gay man to gay lover. There are monuments and gay dowries. Ancient Greece is always the easiest example to site where sex between 2 males was considered perfect because men "were perfect forms" while sex between a man and a woman was considered imperfect because a woman is an "imperfect form". My question of course becomes if I engage in romantic activity with two women, isn't that perfect again because two imperfects equals a perfect??

Gay folks pay taxes, gay folks fight wars. The war argument was used to lower the voting age. If we finally get to a place where we reverse "marriage penalties" in the tax code, gay folks should have the same right to access those benefits.

Anytime where you create a system where an abused partner, especially those suffering "financial abuse", does not have the sames access to rights as the abuser, regardless of sex, you have captured the party. Go to any women's resource center and they well tell you stories of women gathering up literally $1.37 out of their "allowance" every week just do they could eswcape some day.

Lastly, thanks to advances in science, I'm thinking of a female signer who carried David Crosby's child, that you need 2 different sexes to procreate thing is also out the window.

Posted by: Bobby Oliveira at November 9, 2007 1:16 PM


My response.

1. "The Incest and Polygamy Alarm." This argument seems like little more than fear mongering. There are very legitimate social policy reasons to oppose both of these things that have no relevance to the SSM argument.

But before I address the specifics, I will make a more general distinction. The case for SSM is not about marrying ANYONE you love, it is about marrying SOMEONE you love. By referencing polygamy and incest, you are unfairly equating the two. Under current law, homosexuals are denied the right to marry anyone they love. The same is not true of polygamists and those seeking incestuous relationships (assuming they are heterosexual).

While even now the Catholic Church admits that there are people who are constitutively homosexual, I have never heard of a genetically predisposed polygamist. Heterosexuals who seek polygamous or incestuous relationships are not otherwise denied all marriage possibilities, just the specific ones they seek. The same is not true of homosexuals, who are denied all marriage possibilities. (Unless one would like to make the most anti-family argument of them all, that homosexuals should force themselves into heterosexual relationships).

There are strong policy reasons to oppose polygamy and incest that have nothing to do with SSM. Polygamy undermines the social structure because over time, high-status males will attract multiple partners while low-status men will have no options. Society is unwilling to create a permanent underclass of unmarried males.

Incest is proscribed because of the harm it creates within families themselves. Children cannot develop normal relationships with immediate family members if they are in constant fear of being a marriage target.

In both cases, the power dynamics also lead to the exploitation of women, especially young women. Our experience with the enclaves of polygamy in modern society have shown that the men exploit the women, often from a young age.

What either of these cases has to do with allowing homosexuals to wed is beyond me. Essentially, one must argue that if we permit SSM, then society can place no restrictions whatsoever on marriage. This is a slippery slope incendiary, not a real argument.

Indeed, marriage has changed many, many times in recorded history. Underlying much of your argument is your reflexive conservative support of what society has adopted in the past. And while tradition is often a legitimate basis for social policy, it equally often is not.

There was a time when the notion of a wife charging her husband with rape was unthinkable. Or with a wife owning her own property. These things undercut the very notion of marriage as it was understood. Luckily, tradition did not win on these points and the rules changed. The oft-cited case of inter-racial marriage fits in nicely here as well.

2. "Non-Gay SSM". This is your weakest argument. Sham marriages have nothing to do with SSM. They already exist. Take the classic case of the foreigner wishing to have legal resident status in the US by marrying a citizen.

But you worry that same-sex heterosexuals will marry to get the "benefits"? First, most heterosexuals marry people of the opposite sex, so the number of heterosexuals eligible to do this is small to begin with. Second, there is likely to be for some time social sigma attached to homosexuality and I have met few straight men who like having questions of their sexuality lingering. There are likely to be very few takers on this "non-gay SSM" option. ("No, really grandma, I am not gay, Tom and I are getting married for the tax break").

Finally, to the extent that there is some tiny class of non-gay but same-sex people who are willing to go through the trouble of marriage, despite the social implications, all for a tax break, is that really reason enough to deny all homosexuals marriage? No.

3. "Marriage is for the Kids". Easily your strongest argument. You say: "marriage is fundamentally a desirable relationship between a man and a woman because their intimacy can result in the birth of children."

But the anatomical possibility of a sterile woman and a man bearing a child is no more than the possibility of two men bearing a child. We do not verify the possibility of a marriage creating children prior to the granting of a license. Not does the government check in every few years to see how the procreating is going.

We do not deny marriage licenses to the octegenarians who meet in the nursing home long after their first loves died. Indeed, we celebrate that marriage. Why? Because of the children? Obviously not. Because marriage means more to society than the rearing of children.

(As an aside, if it were solely about children, I would argue that homosexuals can adopt children or have them from prior relationships.)

While I agree that the raising of children is one of the most important functions of marriage, it is not the only important one.

As in the octegenarian example, marriage provides people with lifelong caregivers. It is good for society as a whole when people are paired with someone else who has the "job" of looking out for someone else. When that doesn't happen, that single person falls back on society's care.

A second non-child-centric basis for marriage is the domestication of men. It is generally a good thing that men are coupled with partners. It promotes positive social relationships and instills responsibility. In the case of the homosexual man, surely it is better for society that he be partnered with another man than with a woman or with no one at all.

So as to the three bases for marriage noted, SSM meets at least two of the goals and three if we consider gay adoption.

As to your reliance on the traditional function of marriage, you should be careful about being so confident on the child rearing utility. For many centuries and in most cultures, marriage had as much to do with property rights and inter-family relationships as it did to child rearing.

Enough for now. For the record, I would like to note the disadvantage one has in typing in this tiny comment box.

Posted by: Pragmatist at November 9, 2007 2:50 PM

I've carried the discussion of point number 1 here.

By the way, nobody is forcing anybody to type into the comment box. Type wherever you like; just cut and paste into the comment form.

Posted by: Justin Katz at November 9, 2007 10:22 PM

Discussion of point number 2 has moved here.

Posted by: Justin Katz at November 10, 2007 12:03 AM

Regarding incestuous marriage, related people can and do marry. However, the line drawing is based on the core of marriage, not on incestuous sexual acts per se.

The core of marriage is 1) the integration of the sexes, 2) contingency for responsible procreation, and 3) these combined as a coherent whole (i.e. as a social institution).

Polygamy does provided for the core of marriage but is an inferior form and does not merit the preferential status that is accorded one-man-one-woman in our society.

The big religions which allow for polygamy do so on the basis of addressing social ills and on the basis of extending protections to women (usually) and their children. So if the SSM argumentation regarding dependant partners or regarding children is to be adopted in full measure, so must these polygamous principles.

Incestuous marriage is not incestuous just because of actual acts of sexual behavior between closely related pairs. Such acts are incestuous within or outside of marriage. However, the conjugal relationship is a sexual relationship, in public terms, due to its both-sexed nature. And as such the conjugal relationship is protected, and endorsed, on an inter-generational basis. That is, marriage is not a one-off for this or that particular generation; it is something that takes the very long view across many generations.

The line drawing on incestous marriage does intersect with the prohibitions on incestuous sexual acts. However, a marriage is incestuous, and invalid, even if the man and woman do not touch each other, even if they are not sexual attracted to each other, even if they publicly state they will never cohabitate, never engage in sexual acts, and never even do so much as show public signs of affection. No direct evidence of incestuous sexual behavior is required: to hold themselves out as married is to transgress the prohibitions on incest -- both in terms of marriage and in terms of sexual behavior.

The line-drawing on incestuous marriage is largely influenced by culture and by societal consensus on public morality. But universally it is based on the both-sexed nature of human generativity and of human community. Even if there is incest of the same-sex variety, it remains outside of the social institution of marriage with no direct consequence regarding responsible procreation and remains sex-segregative.

Besides that, it is true that on an ethical basis and on a social basis, both polygamy and incestuous marriage provide inferior forms of marriage. That is, they are assessed on the basis of sex integration and responsible procreation.

Incest and polygamy tend toward sex segregation and towards irresponsible procreation.

More, the combination of polyamy with incestuous marriage poses the triple threat -- the defects of each type plus the defects of undermining the preferred form: one man and one woman.

Remove the core of marriage, or relocate "marital status" such that it becomes merely a government rubber stamp for partnerships, sexual and otherwise, and marriage becomes meaningless as a social institution recognized by the government.

Couples enter the social institution. The government does not own the institution; it merely recognizes it with the authority of society. That recongition provides a preferential status -- it is not merely protective nor is it merely tolerated.

That preference for one-man-one-woman arises from integration of the sexes and responsible procreation.

Whatever the merits of the one-sexed scenario, it is not over and above other nonmarital arrangements.

If someone can explain how a "gay" or a "lesbian" partnership is superior to the non-gay and non-lesbian and nonmarital types of relationships that exist, that would be useful. Otherwise, the SSM rhetoric amounts to little more than a direct attack on the nature of marriage itself.

Posted by: Chairm at November 11, 2007 2:57 AM

Discussion of mechanism #3 proceeds here.

Posted by: Justin Katz at November 11, 2007 1:41 PM
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