Von David Orgon Coolidge
The question of marriage has arrived. Every American citizen must now engage two controversies that require resolution: Who should decide what the law of marriage is? What should the law be? The meaning of marriage is being contested in many ways, at a variety of levels. The issue of “same-sex marriage” is only one of these, and ultimately, others may be just as important.1 But the question, “Does marriage require a man and a woman?,” is surely of lasting significance.
In 1996, the possibility of same-sex marriage seemed to burst upon the American scene. Suddenly the whole country heard about what was happening in the State of Hawaii and the implications of actions in Hawaii for the federal government and the other forty nine states. Congress, the President, and mainland legal and advocacy groups were caught up in an intense debate, which culminated in the passage and signing of the federal Defense of Marriage Act.
Appearances, nevertheless, can be deceiving. The question of same-sex marriage has been debated on the margins of our culture for decades, surfacing in courts from time to time and then dropping back out of sight. The current crisis broke in Hawaii in 1993, yet took three years to come to the forefront of national attention. Now, similar lawsuits have spread to Alaska, Vermont, and New York. The debate shows no signs of ending anytime soon and could be resolved before most people even notice what is happening.
Andrew Sullivan, perhaps the leading advocate of same-sex marriage, describes our present time as “The Marriage Moment.”2 He argues that “the issue of same-sex marriage is a civil rights matter and a religious matter. It is a question of politics and a question of culture. It interacts with people as citizens and as parents, as lovers and as relatives, as people of faith and as people of reason. It requires from each of us the most patient of dialogues and the most exacting of distinctions.”3 If Sullivan is correct, it is time to prepare ourselves to address the question. To participate responsibly in the debate, a citizen needs to know four things: what the marriage debate is about, what is happening around the country, what are the deeper issues and arguments; and finally what practical options there are for a person who wants to respond effectively to the campaign for same-sex marriage.
The present marriage debate is bout whether the American people have the right to define marriage as the union of a man and a woman. The legal campaign for same-sex marriage is a transparent attempt to go around the people, through the courts, because there is no political support to legalize same-sex marriage. If there was any doubt about this, the recent passage of state constitutional amendments in Hawaii and Alaska should put the question to rest. The people of these states have rejected the attempt to redefine marriage through the courts. Yet the lawyers in these states who are campaigning for same-sex marriage insist that even these amendments are illegitimate.4
The challengers of the current law argue that the existing legal definition of marriage is irrational and prejudicial (their substantive point), and because of this, the courts’ job is to overturn these majority-made laws (their process point). Those in favor of same-sex marriage are not necessarily arguing that the courts should always lead in social reform; they are arguing, more specifically, that the definition of marriage as the union of a man and a woman is substantively indefensible and therefor courts should intervene and overturn laws that rest upon this definition.
The defenders of the current law disagree. They argue that the existing legal definition of marriage is a reasonable exercise in self-government (their substantive point), and that those who disagree with it should not try to do an “end run” around the democratic process by persuading judges to overturn current laws (their process point). Those in favor of the existing law are not necessarily arguing that legislatures should never be constrained by the courts; they are arguing, more specifically, that the definition of marriage as the union of a men and a woman is substantively defensible and therefore legislatively permissible.
Who decides (the process) is not the same as what is decided (the substance). In constitutional law, however, for better or worse, process and substance are often closely related. Substantive characterizations of an issue are often linked to conclusions about the proper process. If both sides link their substantive assumptions to their view of the proper process for resolving the question, what then makes one view more legitimate than the other? The answer seems straightforward: one view (in favor of current law) allows for everyone to be involved, and does not rule its opponents’ views out of order. The other (in favor of same-sex marriage), in contrast, depends, by definition, upon successfully convincing an elite to rule its opponents’ views out of order.5
It is crucial for those who wish to defend the existing legal definition of marriage to understand that the campaign for same-sex marriage depends, at its core, upon convincing the courts that the current law is prejudicial and that those who support it are bigots. If advocates of same-sex marriage cannot convince a judge to take this point of view, then all that remains is a disagreement between otherwise legitimate opinions, something that should be resolved through the legislative process. In the normal democratic process, everybody (including gay and lesbian activists and their allies) should have a voice, but nobody (including those same activists) should be able to rule out points of view altogether.
The campaign to legalize same-sex marriage through the courts has at least four stages: Sue, Soften up the Public, Slash and Burn, and Sue Again.
Sue. First, nationally-prominent public interest lawyers, working with local gay and lesbian activists, target a specific jurisdiction with courts thought to be sympathetic to their cause. The state is usually one which is relatively liberal in its laws on same-sex couples and in which likely political opponents are relatively marginal or unorganized. A same-sex couple applies for a marriage license, knowing that it will be denied. Then they sue, claiming that the marriage law is unconstitutional on state or federal grounds.
Soften up the Public. The second stage is a “public education campaign” by gay and lesbian activists, and their allies in the progressive community, to pressure the public to stay out of the contest. It begins with press interviews portraying the plaintiffs in a positive light. This way people will be more inclined to say to themselves, silently, “The judge ought to help those people.” Comparisons will be made to earlier civil rights movements.
If any initial success is achieved in the courts, the case will be presented to the public as a “done deal.” High-minded scholars will applaud the court’s ruling as an “advance for civil rights,” and will “remind” attorneys general, legislators, and citizens that the courts are the final interpreters of state and federal constitutions and that the court’s word should be taken as the last word. The public will be “informed” that resistance is futile, because any attempt to override the courts will be declared unconstitutional by the U.S. Supreme Court (“You saw what happened in Colorado, didn’t you?”).6 In this stage, there will be the appearance of a debate, but there will be as little actual debate as possible: if citizens make no objection, the campaign succeeds.
Slash and Burn. If, instead, dissenters organize and a genuine public debate begins, then things become ugly. In stage three, proponents of same-sex marriage actively attack their opponents as “bigots,” “homophobes,” and people who want to “impose their religious beliefs” on those who do not accept them. Those who are inclined to support current marriage law are put on notice that if they join the opposition, they will soon be branded as the equivalent of old-time Jim Crow racists. Through public attempts to discredit dissenters, the cost of supporting marriage will rise, and the faint of heart will head for political cover.
Sue Again. Despite all this, the legislature or the voters may pass a constitutional amendment to preempt or overturn the courts, as they have in Hawaii and Alaska. At this point, supporters of same-sex marriage will file another lawsuit, challenging the constitutionality of the amendment in state or federal court. They may also argue that such an amendment is irrelevant to the question of equal legal benefits for same-sex couples. This is their final attempt to rule their opponents’ arguments out of order. In this way they hope to achieve a political victory, but without the normal political process of give-and-take.
This is not an abstract scenario.7 The entire crisis in Hawaii was spawned in the courts, and the federal Defense of Marriage Act can be understood as a preemptive strike against possible overreaching by other courts. The forty-eight state legislatures which have taken up the marriage debate have done so in response to the Hawaii courts, and with an eye on future cases before their own courts. New lawsuits in Alaska, Vermont, and New York are fresh attempts to force the issue. The power of the courts is at the center of this debate.8 For this reason alone, the campaign to redefine marriage is deeply troubling for the future of our democracy.9
What is this seismic shift? We need to step back from the immediate, day-to-day arguments and strategies, and look more deeply at cultural trends. Disagreements about how to address the possibility of same-sex marriage reveal more fundamental divisions about what marriage “really” is and what the law of marriage should be. Amid all the technical legal arguments, Americans are debating this question What is marriage? In the words of Russell Shaw, “We now lack a single, universally agreed-upon model of marriage and family – an ideal to which everyone subscribes – and we’re in bad trouble as a result.”10 To participate effectively in the public debate, it is important to understand these deeper issues.
Put succinctly, the new view of marriage being adopted by an increasing number of cultural and legal decision-makers is that marriage is an intimate, committed relationship. The purpose of marriage law is therefore to recognize and encourage intimate, committed relationships. The following are the basic features of what I call the “Commitment” model:
This model is not morally neutral.12 It has a moral-legal norm, which appears to be that sex between intimate, committed partners is good; promiscuous or casual sex is bad.
This view of marriage can be contrasted with two more familiar approaches. The first undergirds the existing law, and has been the basis of Western law for centuries.13 It is claimed by the supporters of family values and assumes that men and women “complement” each other, so we can call it the “Complementarity” model. It has these features:
Complementarity does not mean that men and women are only half-persons or that all human qualities can be neatly divided into those that belong to one sex of the other. At best, it means that sexual community requires sexual difference, and insofar as marriage is a total sexual community, it is based upon sexual difference.
The fact that our marriage laws still require a man and a woman to obtain a marriage license is a reflection of these assumptions. The moral-legal norm at work is that marital sexual intercourse is good, nonmarital sexual intercourse is bad.
The second model of marriage is what I call the “Choice” model. It makes these assumptions:
This model assumes that marriage is a contract between individuals with no intrinsic meaning, utterly subject to redefinition. What we call “marriage” is merely a licensing procedure in order to track and regulate those who have entered into contracts. While the Choice model claims to be neutral, it exalts the autonomous individual above all other values or laws. The moral-legal norm of Choice is that sexual expression is good, sexual repression is bad.14 Pushed to its logical conclusion, the Choice model suggests that the State should get out of the marriage-licensing business altogether, and leave people to freely-contracted relationships.
Although the Commitment model is now competing for dominance, it is the conflict between Complementarity and Choice that has defined much of our culture over the past century.15
During the so-called “Sexual Revolution” of the 1960s, many in the heterosexual community changed their view of marriage from the Complementarity to the Choice model.16 They no longer understood marriage as an institution meant to be total, exclusive, lifelong, and procreative. The idea that sex, marriage, and children are somehow connected was rejected, and the new ideal proposed was one of equal individual sexual choice. This became an influential movement in our culture and remains so to the present day.17
The early gay liberation movement was very much part of this trend. It joined the general sexual revolution in its call for individual autonomy in matters of sex and considered marriage irredeemably “heterosexist” and incompatible with freedom from sexual and social oppression. There continue to be prominent scholars, activists, and grassroots leaders in the “gay, lesbian, bisexual, and transgendered” movement who hold this view.18 These old-fashioned gay liberationists are often quoted by their opponents in the family values camp.
Arguably, we are now in an era of “Second Thoughts.” As the returns have come in from the sexual revolution, many in the mainstream have come to see the limits of a Choice model of marriage. Whether as a consequence of the epidemic of divorce or the abandonment of children, today many people say they are more interested in commitment and stability, in responsibilities as well as rights – especially where children are involved.19 They say they are willing to abandon “neutrality” and promote accountability. This “communitarian” mood we see so much of is the root of the Commitment model of marriage. Yet Commitment is clearly not Complementarity because it does not depend upon the difference and integration of the sexes. However, Commitment does claim to be less individualistic than Choice.
These second thoughts have also appeared in the gay and lesbian community. The early years of liberation were challenged by the tragedy of AIDS; many have seen through the emptiness of the bar scene; and the idea of “coupling” has become more popular. Notice how Professor Eskridge subtitles his book, The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment.20 A movement has developed which advocates faithful, long-term same-sex relationships. Andrew Sullivan is one of those most identified with this viewpoint.21
There is also a practical incentive for this view: it is more appealing to the mainstream. It builds bridges more readily within liberal religious communities to gay and lesbian movements, who in turn are closely linked to progressive heterosexual religious leaders.22 These liberal religious communities talk of commitment and have responded very positively to the idea of blessing “covenant relationships” as equal or parallel to marriage. Yet while the Commitment model connects with the mainstream, it does not totally alienate advocates of Choice. Many of those who take a Choice view of marriage and might reject marriage for themselves have now closed ranks with advocates of Commitment in order to support legal efforts for same-sex marriage. Choice advocates see it, though, as an interim step in the transformation of family law.
The result of this new emphasis on long-term relationships is a kind of “gay communitarianism.” Instead of saying, “Marriage is for heterosexuals; let us go our own way,” these advocates say, “If marriage is such a good thing, let us have it too – we want to be accepted as full members of the community.” This argument is proving to have increasing appeal among some segments of the public.23
We must concede that the Commitment model has many attractive features. It fits the companionate ideal of marriage which is so popular in American culture generally. We are quite used to thinking of married persons, in Pepper Schwartz’s well-known words, as “American Couples.”24 In addition, it is hard to disagree with love, commitment, and stability, generally stated. The case for same-sex marriage, with this shift of focus, plays much better in the public debate.
The Commitment model claims to encourage long-term relationships and societal stability, while discarding such “baggage” as the view that men and women are different in significant (and therefore legally relevant) respects. Instead, the Commitment model re-characterizes marriage as a relational institution, rather than a sexual one, and presents same-sex marriage as an extension, rather than a redefinition, of that institution.
As a result of these developments, there are now constituencies within both the heterosexual and homosexual communities that have discovered each other and are making common cause on behalf of redefining marriage as Commitment. To be sure, the heterosexuals in this crowd are more likely to support same-sex marriage than domestic partnerships (Deb Price, for instance). But this is a matter of political calculation, I think, rather than principle. The underlying point of view is the same.25
This approach fits prevailing trends. Consider a typical way of telling the story of our culture: “A generation ago, our marriage law was very traditional. Then we told people to ‘do their own thing.’ The results are in: We need more realism and accountability in marriage and family law.” The topic could be gay liberation, teen pregnancy, promiscuity, no-fault divorce, child support, child custody, or any number of other issues.
According to this story, the 1950s model of sex, marriage and family was “too strict,” the 1960s model was “too radical.” And now, our culture and law need to land “somewhere in the middle.” But everything depends on how one defines “the middle.” Probably the Christian Coalition and the Children’s Defense Fund would agree that intimacy and accountability ought to go hand in hand, culturally and legally. But this tells us everything and nothing. It expresses a mood, but not a coherent point of view. It does not tell us how the persons involved would apply their views to specific issues.
To sharpen the question: Is same-sex marriage merely an extension of the so-called 1950s model? Or does it exemplify the 1960s model? Or is it, instead, a valid element of some yet-to-be-defined “new middle”? Legislators, governors, and judges are being confronted with precisely this question, even though they may not realize it.
The advocates of same-sex marriage do realize this and are adjusting their strategy. In Hawaii, the litigators employed lots of “rights talk,” emphasizing legal equality, but were vulnerable to the charge that they care nothing for the views of the people. In Vermont, the litigators are using more “relationship talk,” emphasizing family values, and their tone is broadly moral, rather than narrowly legal: “We are here, we are your neighbors, we are committed just like your are, we raise children just like you do, we won’t harm anybody. Therefore we should have the rights, responsibilities, and benefits that you have.” Once the issue is framed in this way, advocates of same-sex marriage can portray their opponents as people “against our families,” and advocates can encourage progressives to “side with our families.”
In the marriage debate, Commitment may be sold as a “third way” for those in the political middle to present themselves as both in favor of family values and civil rights. It may appear a synthesis of the best of both Complementarity and Choice: a blend of order and liberty, family without rigidity or anarchy, an inclusive approach to the marriage “tradition.” Consider that Lincoln’s Birthday, conveniently close to Valentine’s Day, is now the annual occasion for nationwide events promoting same-sex marriage. In San Francisco, the All Our Families Coalition sponsors National Freedom to Marry Day. In the words of Kate Kendall, Executive Director of the National Center for Lesbian Rights: “Having our relationships legally recognized is not about special rights or undermining the ‘traditional’ American family. Allowing lesbians and gay men the same right to marry as every other couple promotes such core family values as stability and security for our children.”26
Because of our divided hearts and often compromised lives, we can be taken in by ambiguous rhetoric. Indeed, ambiguity may be the key to the appeal of the Commitment model. Jean Bethke Elshtain has put it as clearly as anyone: “These days, talk about community and connectedness sounds very appealing, especially if the talk does not threaten to demand very much. But whenever general talk of community turns to specific notions of strengthening our core civic institutions – such as marriage, for example – the attractiveness seems to fade and certain sourness often sets in.”27 Mindful of this dynamic, we need to ask some hard questions about the Commitment model.
There are at least three kinds of questions we might ask. The first concerns the intellectual content of the model. For instance, is this model really making a claim about human nature, in which case there is something to discuss? Or is it purely a strategic reinterpretation of tradition for political purposes? How does the Commitment model relate sex, marriage, and children? Purely as a matter of choice? Purely as a matter of relationship? If so, isn’t Commitment just as drastic a redefinition of marriage as the Choice model?
Second, it should be observed that the public policy implications of the Commitment model look very much like those of the Choice model. Those who talk about commitment still do not acknowledge the right of the American people to decide the legal definition of marriage. They keep us busy talking while their lawyers continue their march through the courts.
Finally, I wonder whether the Commitment model is truly accepted by the gay and lesbian cultural and political community, except as another choice for those who may prefer it. Evidence for this observation can be found in the January 20, 1998, issue of the Advocate, “the national gay & lesbian newsmagazine.” One of its featured pieces is Andrew Sullivan’s “The Marriage Moment,” which I have already mentioned. Sullivan exalts commitment and criticizes promiscuity, even if his use of these terms is not entirely clear.
Yet the same issue includes another feature article, “Portraits: Gay Sex in the Face of AIDS.”28 It presents profiles of the sex lives of seven gay men, listing the number of their “sex partners in 1997.” The first man profiled is an “activist, porn star, hustler,” who says he had “as many as 150” partners in 1997. The subtitle of this excerpt is, “Freedom means sex for erotic film star.” Another is a New York City schoolteacher who explains that he came to the United States from Puerto Rico because having sex with whomever he wants is “what America is about.” He had “hundreds” of sex partners in 1997. Another is a man who cruises the internet for those interested in “leather, kink, and master-slave relationships.” He says “The issue is not how many sex partners you have. If they do it responsibly [e.g., with a condom], then I don’t feel that’s a bad thing.” Another is a twenty-three-year-old man who describes sexual freedom as a “rights and privilege,” and had fifteen sex partners in 1997. Then there is a thirty-year-old former drag queen who “honestly can’s say” how many people he had sex with. He criticizes “reckless promiscuity,” but then adds that no one should “regulate where I f– and how I f-.” The sixth is a man who had nine sex partners. Two of these encounters involved “unprotected” sex.
Only one of the seven men profiled had just one “sex partner.” This man, an activist from Austin, Texas, has this to say: “Unfortunately, the history of gay men has been defined by what they do in bed.” In the 1960s and 1970s, he says, promiscuity was “a calling card for activism.” Now that some believe AIDS may be cured, he sees promiscuity on the rise again. He faults those who fail to understand that “sex, like guns, can be a tool, a weapon.” Criticizing the rise in unsafe sex, he says, “It amazes me how gay men in this country are so selfish.”29 His is the lone voice which questions, in any manner, the reigning ethic of “choice.” It is not even clear whether he questions the ethic, or just wants to remind us of its danger in a world with AIDS.
Considering that the Advocate is now widely viewed as a mainstream magazine and is available at local bookstores, what message about commitment does this article convey? Each of the men profiled speaks for himself, not officially for the Advocate. But isn’t the magazine telling teenagers and young adults that this is what it means to be a gay man today? At least this suggests that Sullivan’s preference for monogamy (however he defines it) is merely another option. But if Commitment is merely an option, rather than a moral imperative, it is not Commitment, it is Virtually Choice.30 This suggests that domestic partnership is the legal category that corresponds most logically to the Commitment model, since it is more flexible and carries less “baggage.”
Indeed, at a certain point the boundaries of Commitment and Choice begin to blur. Some legal scholars blend them effortlessly. David Chambers, a prominent law professor at the University of Michigan, has this to say about the meaning of same-sex marriage:
If the law of marriage can be seen as facilitating the opportunities of two people to live an emotional life that they find satisfying – rather than as imposing a view of proper relationships – the law ought to be able to achieve the same for units of more than two ... it seems at least as likely that the effect of permitting same-sex marriage will be to make society more receptive to the further evolution of the law. By ceasing to conceive of marriage as a partnership composed of one person of each sex, the state may become more receptive to units of three or more (all of which, of course, include at least two persons of the same sex) and to units composed of two people of the same sex but who are bound by friendship alone. All desirable changes in family law need not be made at once.31
The question each citizen has to answer is: Do we want to go down this road or not?
For those of us who support the definition of marriage as the union of a man and a woman, a response to the challenge of the marriage debate is absolutely critical. Here I will try to lay out what I see as the crucial points in the debate, first rebutting arguments for same-sex marriage and then adding some positive arguments for reaffirming marriage as a union of a man and woman.
1. Same-sex marriage should be legalized because, after all, marriage is an intimate, committed relationship. Same-sex couples can be intimate and committed like anyone else.
This is a fairly direct argument based on a claim about what marriage is. The proper response to this, first of all, is not to argue about whether same-sex couples can be intimate or committed. Of course they can. Instead, it is best to respond that this may be one view of marriage, but the law expresses a different view: Is assumes that there is something unique about a male-female sexual community. Those who disagree and think the law should be different, should argue for it like everybody else. They should approach the legislature with their proposals, instead of running to the courts. In a forum that allows for genuine citizen participation, we can fairly debate the issues.
2. Supporters of the existing law believe that the only purpose of marriage is procreation. Either they should forbid marriage for opposite-sex couples who cannot or will not have children, or they should let same-sex couples marry, too.
This common argument is based on a misrepresentation of the traditional view of marriage. It suggests that if marriage is solely for “baby-breeding,” then only those able and willing to have babies should be allowed to marry. But the initial premise is false, so the implications are as well. The traditional understanding does not view marriage in such crudely functional terms. It views marriage, first of all, as a community of the sexes, and second, it sees this community as having, as part of its natural role, the nurturing of the next generation. This is not an argument from biology; it includes biology, but it is about persons in community. A couple who are infertile, for whatever reason, can still enter into a total sexual union, and thereby form a genuine marriage. Their marriage may not have all the effects that often concern the law – the law will have less to regulate in their marriage, if children are not involved -–but it will still be a marriage.
3. Gay and lesbian people are a persecuted minority. Marriage statutes should be actively overturned because they are based on a systemic bias against gays, lesbians, and other sexual minorities.
This argument sounds legal, but it is really political. No Supreme Court has ever held that homosexuals are a persecuted minority deserving special constitutional consideration. This is just an argument that the courts should adopt this general point of view. Even if a court did come to this general conclusion – some court may, at some point – it would not follow that marriage laws were motivated by a desire to harm. Hard as it is for advocates of same-sex marriage to believe, marriage laws could actually be motivated by a view that marriage is a special sexual community that deserves preference in the law. Non-marital sexual relationships of all kinds can be (and are) legally distinguished from marriages.
If an advocate concedes this, she must concede that the issue is controversial, and that the traditional point of view is one legitimate point of view. At this point, you then remind her that if both points of view are legitimate, then they should be debated and resolved in a more democratic forum than the courts.
4. Thirty years ago, interracial marriage was illegal, and the courts struck it down. No one questions whether that was a good idea. Today, same-sex marriage is illegal, and the courts should strike it down too. It’s the same principle: the freedom to marry.
The hidden premise of this argument is that just as racial differences are as irrelevant to marriage as sexual differences. It follows that just as the courts took the initiative to strike down bans on interracial marriage, they should strike down bans on same-sex marriage.
But the premise is dubious, both historically and philosophically. As a historical matter, the general law of marriage thirty years ago did not rest on racial differences. For over a millenium, it had been understood in the West that marriage was the union of a man and a woman.32 “Anti-miscegenation” laws were legal aberrations, outside the mainstream, that developed during slavery. They were, as the lawyers call them, “badges and incidents” of slavery, segregation, and racism.33
The premise behind this argument is dubious, too. It assumes that sex (or what it often calls “gender”) is as “socially constructed” as race. But most Americans do not believe this, and there is no reason that they should. “Race” is a social category that has a connection to skin color in some cultures but not in others. Sex, on the other hand, is a biological category that applies across cultures. To put it bluntly, there are no cultures in which men bear children, or in which women impregnate men. To be sure, sex has added meanings in every culture, some of them positive, some negative. But sexual difference and marriage are realities in every culture, not mere “social constructions.”
Because the premises of this argument are flawed, it does not follow that the courts should strike down existing marriage laws. In Loving v. Virginia, the 1967 decision that overturned bans on interracial marriage, the Supreme Court spoke movingly of the freedom to marry.34 But no one seriously argues that by “marry” they meant anything other than men and women marrying. The only way to extend the word “marry” to include same-sex couples is to redefine it, by smuggling in the whole set of dubious assumptions that we have identified. Short of that, the interracial analogy fails.
So when you hear the “same as race” argument, I suggest two responses. First, ask the advocates of same-sex marriage how it is, exactly, that sex is the same as race. Let them explain that sex and marriage are culturally constructed. Let them explain how marriage has nothing to do with sexual difference. Then let them tell you what marriage “really” is, and see whether anyone who does not share their ideology is persuaded.
Second, realize the real purpose of using the race analogy: to cast you as a bigot. It is not to have a philosophical conversation about “essentialism” and “social constructionism.” If the advocates of same-sex marriage can tar everyone who disagrees with them as the equivalent of a racist, then people will be intimidated. When this happens, their strategy is more likely to succeed.
5. Supporters of ‘traditional’ marriage are mostly religiously motivated citizens who want to impose their religious views on others. This is both immoral and unconstitutional, because civil marriage should be based on secular views, and America is based on separation of church and state. Religious people can hold their views in private.
This argument sounds legal, but is actually makes several highly debatable claims about religion, politics, and law. If America is based on the separation of church and state, and if marriage law may only be based on “secular” views, and if supporters of traditional marriage simply want to “impose their religious views” on others, then perhaps the argument has force. But none of these premises is self-evident.
First of all, the First Amendment guarantees citizens religious liberty, which surely includes the right to advocate political and legal views based on one’s religious convictions. It does not include a religious test for arguments – indeed, it prohibits religious tests for officeholders of any kind. How religious one’s political-legal arguments should be, in order to persuade those of differing views, is a mixture of principle and prudence which requires the best judgment of each religious believer.
Second, the view that marriage laws must be based on only “secular” views is only one point of view, and a dubious one at best. It assumes that secular views exist which are entirely “uncontaminated” by religious ones – and that if they exist, they are a good basis for making laws. This is certainly the view of some prominent legal scholars, but it has no constitutional force.
Third, religious people are involved in the debate about civil marriage because they care about the welfare of society, not merely the well-being of their own religious community. This is an honorable tradition in American life, no more “authoritarian” than any other such tradition. And of course, as the advocates of same-sex marriage never tire of telling us, there are religious people on both sides of the issue.
So ironically, the viewpoint behind this (anti-religious) argument is itself intolerant. It assumes one true answer to the question of how religion and politics may relate and imposes that answer in the guise of constitutional doctrine. Show it for what it is.
Besides these kinds of arguments, there are more practical ones which are often made.
6. Same-sex marriage won’t make any real difference to society anyway.
Proponents of same-sex marriage argue that its legalization will make no real difference. They paraphrase the now-famous words of Congressman Barney Frank, “What difference does it make to you if my partner and I can get married? How does it change your life in any real way?”35 At the same time, these advocates claim that legalizing same-sex marriage will be a tremendous achievement. In Andrew Sullivan’s equally memorable words, “If nothing else were done at all, and gay marriage were legalized, ninety percent of the political work necessary to achieve gay and lesbian equality would have been achieved. It is ultimately the only reform that truly matters.”36 Which is it? “No difference” or “Ninety percent”?
Of course the legalization of same-sex marriage will have dramatic effects; it is supposed to. The real debate is about whether these effects will be good.
For instance, legalizing same-sex marriage will send a new moral message to Americans about marriage: Marriage is based solely upon emotional and economic attachment, and those who disagree with this view are bigots who should not be allowed to “discriminate” against others.
It will also have a legal impact. This includes federal benefits, but the main effects will be at the state level, in the areas of marriage-related benefits, anti-discrimination laws based on marital status, adoption and child custody laws, public and private school curricula, nonprofit contracts with State and local government, private groups using public facilities, and professional licensing standards for lawyers, doctors, social workers and teachers, among others.
Finally, this moral message and legal impact cannot help but have profound societal effects over the long run. Those parents and associations who disagree with legalized same-sex marriage will be further alienated from mainstream America and its central institutions. There will be less support for marriage benefits in the workplace; benefits will be reduced, and more and more employers will give benefits only to individuals, leaving families to fend for themselves. Meanwhile, young people will grow up imbibing the official view that there is nothing special about the male-female family unit; it is only one item on the sexual smorgasboard of life. They will feel that they must experiment sexually in order to discover “who they really are.” But since there will be no real answer to that question, the result will be deep confusion and many broken lives.
To some, there travails will be a sign of a transition to a more inclusive society; to others, they will be evidence of a society without standards, descending into chaos, prepared to suppress its own tradition of civic participation in the name of “equality.”
7. Same-sex marriage will be not be harmful for children, it will be good for them.
Proponents of “same-sex marriage” argue that children need “parents,” not a mother and a father. In some cases they claim that children in same-sex households get a superior upbringing. Using a stockpile of carefully-constructed research, they argue that studies “prove” these facts. These studies, however, use biased samples and have other significant methodological flaws.37 In addition, the whole argument assumes that the normative issue of what kind of upbringing children need can be scientifically resolved, without introducing any substantive assumptions. This is logically false, because science and its uses are not morally neutral.38
Most people still believe that a child is best raised by a mother and father (ideally, in most cases, his or her own mother and father), because in a household that includes both sexes, a child learns something important about relating to each sex.39 Those who do not believe, however, that there is anything unique to be learned from one sex or the other, are hardly about to conduct studies investigating the impact of these differences. Instead, they are likely to conduct studies that conclude there is “no difference” between opposite-sex and same-sex parenting. Most people are naturally suspicious of such “scientific” results. They should be.40 They should also be skeptical of the claim that judges have any special expertise in evaluating such studies. If nothing else it to be learned from the 1996 same-sex marriage trial in Honolulu, this is it.41
8. Same-sex marriage will not open a Pandora’s box, for instance, to polygamy.
This is another argument about societal effects. Most proponents of same-sex marriage laugh off the question, or label it a diversion from the “real” issue. But the question of polygamy is not a diversion, because it highlights a perfectly legitimate substantive question: Once one drops the definition of marriage as the union of one man and one woman, why limit marriage to two people? Professor Chambers made precisely this point. Some gays and lesbians are personally interested in multiple partners, and some are not. There is no “pro-polygamy” movement on a grand scale. But that is not the issue: there is a logical implication here, and logical implications are especially powerful in legal settings. A change in the law based on the introduction of a new principle can begin “small” and quickly become “large,” while its proponents deny responsibility for the results. In the case of America today, simple sexual anarchy is probably more likely than “polygamy,” but anything could happen, and once the floodgates are opened, anything probably will happen. If and when it does, then the question will be whether there is any principled basis for opposing it. Supporters of the existing law have a valid basis for worrying that same-sex marriage will open a “Pandora’s Box” and be unable to close it.
9. The law should come to terms with the reality of gay and lesbian families.
There do exist, in growing numbers, same-sex couples with children, who argue that they need greater legal protections. They argue, therefore, that legalizing “same-sex marriage” would have beneficial societal effects for children – their own children. This is perhaps the hardest argument to address, because we are no longer speaking in the abstract. We are called to live at peace with our neighbors, and treat them well, even if they establish households whose values we deeply question. The welfare of all our children should be at the heart of our considerations of the public good.
Yet tolerance does not require endorsement. Same-sex marriage is endorsement. Whenever a same-sex couple “have children,” recall that somebody is missing: the other parent. Even if the other parent is somehow present in the child’s life, perhaps as a visitor or friend, he or she has been excluded in a basic way. While the custodial parent should (and does) normally have legal rights, society has no general duty to promote child-rearing in settings that deliberately exclude a mother or father. Children who are born in these settings deserve our love and compassion, just like children living in other kinds of non-marital households. But their mere existence does not in itself establish their goodness. Legalized same-sex marriage would strongly legitimate such households.
Having said this, how should the law relate to “gay and lesbian families”? Are there ways to address wisely the concrete issues which arise in these settings, without generally endorsing them? The answer has to be yes, and it is a matter of working out how, on a trial-and-error basis. Legal means have been developed to deal with children living in other sorts of non-traditional settings. While upholding general principles, the law must also address particular circumstances. How it will do this, in coming years, remains to be seen, and we have a duty to be involved. What we should not do, however, is to legalize same-sex marriage as a moral, political, and legal shortcut. This is not required, and it would not be wise.
10. If fidelity is good, and promiscuity is bad, why not encourage fidelity by legalizing same-sex marriage?
This is an especially attractive argument. Praise of fidelity and criticism of promiscuity is superficially reassuring. Unfortunately, it is not persuasive.
Short answers to the argument are that homosexuals do not really mean “monogamy” in the same sense supporters of current marriage do and that, in any case, there is no reason to call monogamous same-sex relationships “marriages.” Now let us consider each element of this response.
Despite claims to the contrary, there is truth to the first response. Studies have repeatedly shown that the majority of gay male couples neither practice nor value sexual fidelity.42 Even those who do seem to define “fidelity” in a very elastic manner. Andrew Sullivan’s landmark book, Virtually Normal, is perhaps the most eloquent statement of the argument that “we’re just like you, we want the same things, let us in.” Yet, as most reviewers of the book noted, even this most prominent spokesperson for same-sex marriage urges heterosexuals to learn from homosexuals an appreciation of the need for extramarital “outlets.”43 Richard Mohr, another prominent advocate, even more openly celebrates the value of “flexibility” in same-sex unions.44 In short, the leading advocates of “same-sex marriage” appear to want to redefine “monogamy” in a way that makes room for infidelity.
Second, even if these advocates were to agree that “monogamy” means real exclusivity, that would be no reason to legalize “same-sex marriage.” Sexual fidelity is part of a larger vision of marriage. Despite all the changes of recent times, the law still assumes that marriage is the vow to enter a lifelong and monogamous and male-female community. The fact alone that a sexual relationship is monogamous does not, therefore, make it into a “marriage.”
If marriage is inherently the union of a man and a woman, then it cannot (morally) and should not (legally) be redefined in order to achieve some instrumental public policy goal. If one is seeking other ways to reduce promiscuity among gays and lesbians, the spectrum of means – depending on one’s viewpoint – ranges from enacting domestic partnership laws to making funding available for practitioners of reparative therapy.45
In other words, it is not that “monogamy” is a public value, and that marriage laws exist as a mere means of promoting monogamy. It is the other way around: Because of what marriage is, it should be monogamous. A man and woman can only offer themselves fully to one other person. Marriage, understood as the union of one man and one woman, is thus the touchstone from which concepts of marital “fidelity” and “monogamy” themselves take their bearings.
The alternative – defining marriage as Commitment – undercuts appeals to “monogamy” and “fidelity.” If all genital sexual relationships are a matter of degree, rather than a matter of kind, then there is no “bright line” separating sex within marriage and sex outside of marriage. There is no morally significant difference between marital and non-marital sex. Instead, there is merely a “sliding scale,” in which some relationships are more or less “close” or “distant.”
This set of assumptions, if adopted, clearly undercuts the critique of “promiscuity” which is supposed to be the attractive feature of the Commitment model. By removing the moral element and replacing it with a relational or utilitarian one, “monogamy” and “fidelity” become subject to redefinition based on “the relationship,” or one’s individual preference or calculations. Whatever else may be said about these views, they are different from the view that monogamy and fidelity are principles which are necessary to the institution of marriage, and therefore to marriage law.
Now it is time to add some reasons for existing marriage laws, without repeating what has already been stated above. Ultimately, the case for the current definition of marriage is a positive one. It is not based on overcoming arguments set forth by its opponents, but on the enduring reality of marriage itself.
1. Marriage is a unique, male-female sexual community with many public effects. For this reason, marriage deserves recognition, protection and benefits under the law.
First, the current marriage law, as we observed earlier, assumes that there are two sexes, male and female. Is this a reasonable assumption? Yes, although there are those who question it.46 It further assumes that the sexual organs of men and women are designed to go together, at least for reproductive purposes. Is this a reasonable assumption? Yes, although there are those who question this, too.47 Third, it assumes that the sexual union of male and female creates not only a reproductive unit, but a unique human community. Is this a reasonable assumption? Yes, although supporters of same-sex marriage vigorously dispute this.48 Fourth, is assumes that this marital community makes an indispensable contribution to the wellbeing of the larger society, particularly by uniting and extending the generations. Is this a reasonable assumption? Yes, although supporters of same-sex marriage argue that there is nothing special about the procreation and nurture of children that requires a husband and wife.49 Finally, the law assumes that it is in society’s interest to preserve, protect, and promote this marital community through its laws. Is this a reasonable assumption? Yes, if one grants the earlier assumptions. Not if one contests them.
To call the current law of marriage “irrational” or “discriminatory” because it does not include same-sex couples is really just to present one’s argument for a different point of view. That is why the question of marriage belongs among the people and their elected representatives, rather than among a judicial elite. The ideas that men and women do not form a unique sexual community, that the procreation and nurture of children have no natural connection to one another, and that marriage makes no distinctive contribution to the larger social order, sound even more “irrational” to most Americans. In a culture where one person’s rationality is another’s prejudice, the idea that the current law of the entire world is “obviously irrational” is itself irrational. Compared to such views, the opinion that marriage is a distinctive form of human community is entirely sensible.50
2. The law should continue to encourage men and women to enter into marital sexual relationships.
It has three tools at its disposal: it can promote, it can permit, and it can prohibit.51 The law promotes behavior by giving it endorsement, recognition, protections, and public benefits. Our current marriage laws do this with definitions, licensing, rights and responsibilities, and subsidies. The law also permits behaviors which it does not endorse, but does not criminalize. States which have repealed their adultery, sodomy, and fornication statutes, for instance, have not thereby given their endorsement to extramarital, homosexual, or premarital sex. They have merely decided that they will not devote government resources to enforcing penalties for these kinds of behavior. A state may accomplish the same result by leaving a law on the books, and using it only sparingly. Finally, the law also prohibits behaviors it judges to be not only immoral, but so unhealthy for society that it chooses to discourage them in advance, rather than leaving choice to the individual. In all states, this still includes, for example, prohibitions on incest, bigamy, and underage marriages, and many now ban marriage between same-sex partners.
If what same-sex couples want is privacy, it is available to them in most states, some formally (by leaving adult consensual sex unregulated) others informally (by not enforcing bans).52 The law also leaves many areas, for example in contracts, to the private judgement of individuals. Various issues relating to same-sex sexual (or non-sexual) relationships can be addressed this way. The law need not necessarily endorse or override a specific agreement between private parties.
But one can already hear the objections from the other side. By adopting a clear preference for marriage, and leaving other sexual relationships in the zone of “permission,” the law is “doing violence.” It is “marginalizing” sexual “outsiders,” communicating to these persons that they are “worthless.” Andrew Sullivan makes many of these claims. He claims that he “knows in his heart” that same-sex sexual relationships must be good.53 He believes that persons have a variety of “orientations,” some heterosexual, some homosexual, and that the only prospect for a homosexual person to have a full and happy life is for her to enter into intimate, lasting sexual relationships with another person of the same sex.54 Therefore, as long as society withholds its full acceptance of these relationships, it will send a message to homosexuals that they are “incapable of real love, unworthy of real commitment, incompetent to achieve what every heterosexual in this country and indeed the world regards as the most important and satisfying and significant thing in their lives.” Condemned to miserable and loveless lives, persons with same-sex desires will express their despair in destructive ways, according to Sullivan.55
Others, including myself, disagree. We question the view that sexual desires are the key to identifying one’s sexual identity. We question the view that “sexual orientation” is as significant as being male or female. In our view, many factors may contribute to same-sex sexual attraction. But at bottom, each person is meant to have healthy sexual relationships with members of the same sex. Since these are the kinds of relationships that are best for a person, other kinds should not be encouraged.56 To be sure, people get themselves into same-sex sexual relationships, like other kinds of non-marital sexual relationships. Like any such relationship, they may have long-term consequences that need to be legally addressed. But it is not in the best interest of these persons, or the community around them, for these relationships to be legally endorsed. To do so would only promote a movement that seeks full acceptance of “gay, lesbian, bisexual, and transgendered identity” and is willing to redefine marriage to get it.57
Does this then mean, as Sullivan claims, that persons with this viewpoint, including myself, really do believe that homosexuals are “incapable of real love, unworthy of real commitment, incompetent to achieve what every heterosexual in this country and indeed the world regards as the most important and satisfying and significant thing in their lives”? Not at all. This could only be true if one accepts the assumptions that appear to lie behind Sullivan’s claim.
For instance, he appears to assume that sexual love is necessary for “real” love or “real” commitment. But this is not true. Sexual love is only one of many forms of love. True love among family, friends, and associates in shared tasks does not require intercourse or orgasm, and I doubt that Sullivan would claim it does. Yet these are genuine forms of real and committed love.
Sullivan also appears to assume that anyone who does not marry is missing what would be “the most important and satisfying and significant thing in their lives.” But this is not true either. Marriage is no panacea for anyone’s need for “satisfaction” or “significance” – in fact it often requires sacrifices that force one to set aside those very needs. Again, I am sure that Sullivan knows this. Meanwhile, many unmarried persons live equally satisfying and significant lives, sustained by deep and lasting friendships.
Finally, Sullivan appears to assume that homosexuals are forever denied the desire or opportunity to enter into marriage, because they cannot marry their preferred same-sex partner. But this, too, is not true. Some persons with same-sex desires are able to discover genuine sexual desire for the opposite sex, develop relationships, and eventually enter male-female marriages. Any laws or policies which would make this less likely only end up harming those they claim to serve.58
I do not believe that persons who struggle with same-sex desires are incapable of true love or real commitment. I believe that these persons are precious individuals, created in the image of God, who deserve respect as my neighbors and fellow-citizens. Here I am arguing, as one citizen to another, about what that respect requires.
Soon after the same-sex couples filed their recent lawsuit in Vermont, the Attorney General of Vermont filed a “Motion to Dismiss.” After responding to some of the arguments we have already discussed, this well-crafted reply proceeded to offer seven reasons that Vermont’s marriage law has, using the terms of legal jargon, a “rational basis”59:
1. “The State has an interest in promoting the institution of marriage in its current form because it unites men and women.” Marriage, the Attorney General says, “is an institution which uniquely celebrates the complementarity of the sexes.” Therefore, “it symbolizes to all society the value of bridging differences and working together,” and it “instructs the young of the value of uniting male and female qualities and contributions in the same institution.”
2. “The State has an interest in promoting child-rearing in a setting which provides both male and female role models.” Since “marriages are built on male and female inclusion, they provide special advantages to raising children.” This is because “Children see and experience the innate and unique abilities and characteristics that each sex possesses and contributes to their combined endeavor. Children, thus, learn lessons for later life by seeing both parents working together in child-rearing.”
3. “The State has an interest in furthering the links between procreation and child-rearing.” Vermont has seen a growth in single-parent households, and though many single parents do a good job, “they do not have all the benefits of families with two parents.” Because “same-sex couples cannot conceive a child on their own,” the Legislature could reasonably conclude that “increased creation of children through technologically or third-party assisted reproduction” tends “to further separate the connection between procreation and parental responsibilities.”
4. “The State has an interest in preserving marriage as an institution.” Marriage is under attack today, and “the Legislature could conceivably have concluded that expanding marriage to include same-sex unions would destabilize the institution of marriage.” If same-sex couples are allowed to marry, for instance, “the conception of marriage as a precursor to raising a family will thus be diminished. In its place will come marriage as a tax status, a means to obtain economic benefits.” While one can debate whether this is better or worse, “the Legislature could rationally conclude that the change will make the institution weaker.”
5. “The State has an interest in ensuring that its marriages are recognized in other states and in not expending resources to sort out conflict-of-law issues among its sister states.” If Vermont is forced to marry same-sex couples, when these couples move to other states they are likely to file suit to attempt to gain recognition of the validity of their marriages. Not only may this impair the legality of those marriages, it will potentially drag the state into “expending scarce judicial and government attorney resources on deciding the myriad questions of whether certain marriages, divorces, or related family orders are valid.”
6. “The State has an interest in using the law to make normative statements.” “No matter how modern we may believe our society to be,” the Attorney General says, “the law still has a role in reflecting and shaping value judgments.” Vermont’s laws embody these judgments in various ways: by prohibiting bigamy, by criminalizing prostitution, by criminalizing sexual relations with individuals under age sixteen. Likewise, it may define marriage as the union of a man and a women.
7. “The State has an interest in minimizing the use of surrogacy contracts and sperm donors to avoid, inter alia [among other things], increased child custody and visitation disputes.” Because “Same-sex couples biologically require a third person’s assistance or contribution to conceive a child,” the state could conclude that the legalization of same-sex marriage “would lead to an increase in technologically assisted conception.” Conception by means of sperm donors or gestational surrogates is controversial, and “the custody issues that can arise are significant, and the State has an interest in keeping the number of those disputes within reasonable bounds.” The resulting impact “on the resources of the court system from increased litigation of this sort is obvious. The State has a rational justification for avoiding these issues by denying marriage to same-sex couples.”
In summary, “The numerous justifications for the present legislative scheme are not based out-moded views of men and women,” according to the Attorney General. “Rather, they are grounded upon the rich physical and psychological differences between the sexes that exist to this very day.” For this reason, Vermont (or any other state) may reasonably enact such a marriage law, and there are no “constitutional” grounds for declaring it “invidious” or “irrational.”
These are not the only arguments that can be offered for the “rationality” of a state’s marriage law, but legally speaking, they are among the most important. Depending on their own beliefs, judges will find all of them persuasive, or only some of them, or perhaps none of them. Even if we question whether judges should be debating these arguments at all, our duty is to make the best arguments we can. We cannot control the outcome, we can only respond as it occurs.60
Our newspapers, airwaves, and civic arenas are filled with claims and counter-claims about family, equality, and the needs of children. The static level is rising, and we may be headed for a showdown before the next millennium begins.
Culturally and intellectually, the question of marriage goes as deep as any question can. It engages our deepest convictions about life, love, and law. It stretches our minds and hearts.
Legally, the contest over same-sex marriage is a classic example of the conflict between two understandings of the relationship between the people and the courts. The one side considers itself the defender of civil rights. It sees a constitution as a charter of individual rights, views the people as a dangerous majority, and believes that courts should interpret a constitution in a way that advances individual rights over against the social and legal institutions adopted and enacted by the people and their elected representatives. It views the courts as the preferred forum for social reform, because they are seen as less political
The other side considers itself the defender of civil society. It sees the constitution as a charter of political self-government and believes that the courts should interpret the constitution in a way that respects the people’s social and legal institutions, unless they openly contradict the meaning of the constitution. It views the legislative branch as a better forum for social reform, because it is more political.
These debates will continue. Neither side is going away. Whoever is “victor” at any given time will still have to contend with the “vanquished.” People will continue to live their very imperfect lives, seeking some balance between justice and compassion, between truth and liberty.
In the meantime, if one believes that a good society requires a critical mass of healthy male-female marriages with children, then any policies that redefine, and thereby weaken, that basic unit are a bad idea. I believe that same-sex marriage is a bad idea, not because same-sex couples are bad people, but because same-sex marriage is not marriage. A genuinely pluralistic society must do justice to individuals. But it must also do justice to marriage.
How we ultimately answer the question of marriage will depend on the quality of our citizenship. However the contest turns out, the effects will be felt for generations to come.
1 I put the term "same-sex marriage" in quotation marks here because, as the reader will discover, I believe that same-sex unions are not marriages, and should not be called marriages. I realize that this may be deeply offensive to those who disagree with my viewpoint, and regret this. In focusing this essay on the issue of same-sex marriage, I do not mean to discount the serious impact of instant divorce, adultery, illegitimacy and fatherlessness in our culture. These, it should be explicitly stated, are problems created by "straights." See Barbara Dafoe Whitehead, The Divorce Culture (New York: Alfred A. Knopf, 1996); MaggieGallagher, The Abolition of Marriage (Washington, D.C.: Regnery, 1996); and David Popenoe, Jean Bethke Elshtain, and David Blankenhorn (eds.), Promises to Keep: The Decline and Renewal of Marriage in America (Lanham, Md.: Rowman & Littlefield,1996).
2 Andrew Sullivan, "The Marriage Moment," The Advocate (January 20, 1998) 59-67. This article is a poignant reflection on the meaning of marriage in an era when AIDS may be receding.
3 Andrew Sullivan, ed., Same-Sex Marriage: Pro and Con, a Reader (New York: Vintage, 1997), xxiv.
4 On November 3,1998, the voters of Hawaii enacted the following amendment to the Hawaii Constitution: "The legislature shall have the power to reserve marriage to opposite-sex couples." H.B.117, S.D. I, C.D. I, Conf. Comm. Rept. No. I (Apr. 18,1997). Yes votes were 69 percent, No votes were 29 percent, and a percent were blank ballots, which are counted as No votes under Hawaii law. The response of the lawyer for the plaintiffs in Hawaii was very straightforward: "Dan Foley, the attorney for the three gay couples whose lawsuit led to the 1993 decision, said the vote shows that civil rights questions should not be put before the electorate." Jean Christensen, "Marriage vote holds painful message; Gays disappointed by same-sex tally," Honolulu Advertiser (Nov. 5, 1998), Al, A7.
The same day, the voters of Alaska enacted the following amendment to the Alaska Constitution: "To be valid or recognized in this State, a marriage may exist only between one man and one woman." S.J.R. 42, 20th Leg. (Alaska 1998), as modified by Bess, Dodd and Legislature v. Ulmer, Nos. S-08811, S-08812, S08821, Preliminary Opinion and Order, slip op. at 5-7 (Ak Sept. 22, 1998). (I will see if this latter decision is now reported, which will make it shorter.)
5 I discuss this point in some detail in my article, 'Playing the Loving Card: Same-Sex and the Politics of Analogy," BYU Journal of Public Law 12 (1998): lot.
6 This is a reference to the U.S. Supreme Court's decision in Romer v. Evans, 116 S.Ct. 1620 (1996), in which the Court overturned an amendment to. the Colorado State Constitution on the grounds that Amendment 2 had made homosexuals 'a stranger to the laws" of the State. Romer is now routinely invoked by advocates of same-sex marriage as a threatened basis for a lawsuit, whenever a State considers a bill that would not recognize same-sex marriages.
7 See, for instance, the effective handbook, To Have and To Hold.- Organizing for Our Right to Marry (Washington, D.C.: National Gay & Lesbian Task ; Force Policy Institute, 1995).
8 On November 5, 1997, Martin Rice <firstname.lastname@example.org>, vice-chair of the Democratic Party in Hawaii, sent a national survey of litigation opportunities to the Marriage List, an online strategy listserv for advocates of "same-sex, marriage." Entitled "Potential Status of SSM in the U.S.," it was posted on the List in its edited Marriage Digest <email@example.com>. Similar surveys and analyses are bang carried out on a State-by-State basis by the Marriage Project, sponsored by the Lambda Legal Defense & Education Fund, Inc., based in New York.
9 On the importance of popular participation in fundamental lawmaking, see Mitchell S. Muncy, ed., The End of Democracy? The Judicial Usurpation Of Politics (Dallas: Spence Publishing, 1997); Mary Ann Glendon, A Nation Under Lawyers (New York: Farrar, Straus & Giroux, 1994); and Richard D. Parker, "Here, The People Rule”: A Constitutional Populist Manifesto (Cambridge, Mass.: Harvard University Press, 1994). The important trilogy by Christopher Wolfe offers a paradigm of how constitutional interpretation can be both principled and modest, without resorting to either an amoral positivism or a purely results-oriented activism. See his books The Rise of Modern Judicial Review, rev ed. (Lanham, 7 Md.: Littlefield & Adams, 1994), How To Read the Constitution (Lanham, Md.: Rowman & Littlefield, 1996), and Judicial Activism, rev. ed. (Lanham, Md.: Rowman & Littlefield, 1997).
10 Russell Shaw, "For Better or Worse or Not at All," Columbia (February 1998), 5.
11 I discuss the following models in greater detail in my article, "Same-Sex Marriage?" 38 South Texas Law Review (1997), 28-42.
12 In this respect Commitment rejects the alleged neutrality of the liberal Choice model, which I discuss below. For an articulate critique of neutrality and a defense of same-sex unions, see Carlos A. Ball, "Moral Foundations for a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism," 85 Georgetown Law Journal 1871 (1997). Ball's work can be profitably contrasted with the work of Robert P George, which also critiques liberal neutrality, but reaffirms the current law of marriage. See R. George and G. Bradley, "Marriage and the Liberal Imagination," 84 Georgetown Law journal 301 (1995), and R. George, "Public Reason and Political Conflict: Abortion and Homosexuality," 106 Yale Law journal 2475 (1997), 2495-2501 and Chai R. Feldblum, "A Progressive Moral Case for Same-Sex Marriage," 7 Temple Political and Civil Rights Law Review 485 (1998)
13 See the excellent recent narrative by John Witte, Jr., From Sacrament to Contract: Marriage, Religion, and Law in the Westerns Tradition (Louisville, Ky.: Westminster John Knox Press, 1997)
14 The archetypal expression of this point of view is David A.J. Richards, Sex, Drugs. Death and t& Law (Lanham, Md.: Rowman & Littlefield, 1982).
15 Rochelle Gurstein's The Repeal of Reticence (New York: Hill & Wang, 1997) describes this conflict as a larger cultural struggle between "the party of reticence" and "the party of exposure." For more on this conflict, see Bruce C. Hafen, "The Legal Status and Definition of Marriage," 99-117 in Christopher Wolfe (ed.), The Family, Civil Society, and the State (Lanham: Rowman & Littlefield, 1998).
16 For a succinct and readable summary of these developments, see the first chapter in Glenn T Stanton, Why Marriage Matters (Colorado Springs: Pinon Press, 1997).
17 The continuation of this trend among elites can easily be seen in the overwhelmingly negative portrayal of marriage which appears in textbooks. See Norval Glenn, Closed Hearts, Closed Minds:The Textbook Story of Marriage, a Report to the Nation from the Council on Families (Institute for American Values, 1997). IAV can be contacted at firstname.lastname@example.org.
18 One prominent example is Frank Browning, a frequent columnist for the New York Times. In his column, "Why Marry?" New York Times (April 17, 1996). His reaction to the push for "same-sex marriage" is this: "The problem is with the shape of marriage itself . . . . We homosexuals have invented richer alternatives." Id.
19 One bellweather of this change was the public response to Barbara Dafoe Whitehead's article, "Dan Quayle Was Right," in the Atlantic Monthly (April, . 1993), 47-84. As one set of commentators has noted, "The article garnered a . sensational response from American intellectuals, columnists, and political leaders." Don S. Browning, et al, From Culture Wars to Common Ground: Religion and the American Family Debate (Louisville: Westminster John Knox Press, 1997). This a volume by Browning and his colleagues is itself a testimony to the reality of "Secand Thoughts."
20 William N. Eskridge, Jr., The Case for Same-Sex Marriage (New York: Free Press, 1996).
21 Sullivan's central statement is his book, Virtually Normal (New York: Alfred A. Knopf, 1995).
22 See, for instance, the feature story on spirituality, "Offerings' find acceptance: More and more, the contributions of Gay people of faith are accepted by the broader Gay civil rights movement," in the Washington Blade (December 26, 1997), 5-12. Lambda Legal Defense and Education Fund's Marriage Project in New York offers an online guide for organizing religious communities to support "same-sex marriage." It can be accessed at <www lambdalegal.org>.
23 A recent UCLA poll illustrates this trend: While 34 percent of first-year .' college students believe there should be laws "prohibiting homosexual relationships," 5o percent believes that "same-sex couples should have the right to legal marital status." See 'Students split on same-sex marriage issue," Washington Blade . (January 23, 1998), 10. According to the Blade, "The annual poll includes 250,000 first-year undergraduate students at 464 colleges and universities around the country." Id. The poll was also widely noted in the mainstream press.
24 Philip Blumstein and Pepper Schwartz, American Couples (Morrow, 1983).
25 Ann Landers has addressed the issue of same-sex unions in at least eleven columns since 1989. In 1996, she declared that same-sex couples should Blessing to This Marriage," Chicago Tribune (July at, 1996), Arts & Entertainment Section, s. Deb Price, on the other hand, is perhaps the most prominent media advocate of "same-sex marriage." In 1996 and 1997 alone, she addressed the issue in no less than fifty of her syndicated columns. In her view, "Marriage can be the union of a man and woman, a man and man or a woman and woman. That's already the emotional reality." "Hawaii's Top Court Appears Willing to Legalize Same-Sex Marriage," Detroit News (Sept- 5, 1997), E2. Perhaps leaving well enough alone, she has never responded to Ann Landers.
26 Quoted in "San Francisco Celebrates National Freedom to Marry Day," a press release from All Our Families Coalition <www.Allourfamilies.org>, dated January 26, x998.
27 Jean Bethke Elshtain, "Marriage in Civil Society," Family Affairs (Spring 1996), 4. Family Affairs is published by the Institute for American Values, which is based in New York.
28 The Advocate (Jan. 20, 1998), 49-58.
29 Ibid., 51.
30 Whenever critiques of promiscuity gain force within the homosexual community, they seem to generate a rapid and hostile reaction. This can be seen, for example, in the near-hysterical reaction to Andrew Sullivan, Larry Kramer, and Gabriel Rotello by the leaders of Sex Panic!, a new sexual freedom movement led by academics such as Michael Warner and Kendall Thomas. For dualing views of Sex Panic!, see any issue of The Advocate in 1997. A more critical report on the infighting, from a socially conservative point of view, can be found in "Gay Second Thoughts," Heterodoxy (Nov.- Dec.1997), t, r6-r8. Heterodoxy is published by the Center for the Study of Popular Culture in Los Angeles.
31 David L. Chambers, "What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples," 95 Michigan Law Review 447 (1996), 490-91 .
32 Again, see John Witte, Jr., From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition (Louisville, Ky.: Westminster John Knox Press, 1997)
33 This theme is developed in A. Leon Higginbotham, In The Matter of Color (New York: Oxford University Press, 1978), Ch. 2, and Shades of Freedom (New York: Oxford University Press, 1996), Ch. 4. For more on the background of Loving, see the symposium in 41 Howard Law Journal (forthcoming, 1998). On the use the Loving analogy to advance the cause of "same-sex marriage," with particular focus on Hawaii, see David Orgon Coolidge, "Playing the Loving Card: Same-Sex Marriage and the Politics of Analogy," 12 BYU Journal of Public Law 201 (1998).
34 388 U.S. 1 (1967).
35 Congressman Frank spoke these words to House Judiciary Chairman Henry Hyde on the House floor in 1996, during the debate over the passage of the Defense of Marriage Act.
36 Sullivan, Virtually Normal, 185.
37 See the discussion of these studies and their flaws in Lynn D. Wardle, "The Potential Impact of Homosexual Parenting on Children," 1997 U. Of Illinois Law Review 833 (1997)
38 For examples of how substantive assumptions inform the interpretation of research, see these two excellent articles, both from the Summer 1997 Theme Issue on Christianity and Homosexuality of Christian Scholars Review (Vol. 26, No. 4): Mark A. Yarhouse and Stanton L. Jones, "A Critique of Materialist Assumptions in Interpretations of Research on Homosexuality," 478-495, and Heather Looy, "Taking Our Assumptions Out of the Closet: Psychobiological Research on Homosexuality and Its Implications for Christian Dialogue," 496-513.
39 This natural assumption is consistent with social-scientific data. See David Popenoe, "Modern Marriage: Revising the Cultural Script," in Popenoe et al, Promises to Keep, 247-70.
40 See Wardle, "The Potential Impact of Homosexual Parenting on Children," 844-52.
41 Ibid. 884-9r (on the use and abuse of social science in the Baths trial).
42 One study often cited to this effect is D.P. McWhirter and A.M. Mattison, The Male Couple (Prentice-Hall, 1984), where the authors found that none of the couples who had been together for over five years had remained monogamous. The authors' solution was to distinguish between "emotional" and "sexual" faithfulness, in favor of the former. It can be argued, however, that this study was conducted before the height of the AIDS epidemic, and that things have changed. Eskridge, for one, contends that "Gay monogamy has greatly increased in the last decade, both in response to AIDS and to some social acceptance of committed relationships." Eskridge, The Case for Same-Sex Marriage (Free Press, 1996), at 53. To confirm this, he offers the following footnote, at 231: "See A.A. Deneen, et al, "Intimacy and Sexuality in Gay Male Couples," 23 Archives of Sexual Behavior 421, 429 (1994)." Yet according to Jones and Yarhouse, the Deneen study reported that "the majority of the partners in the couples (62%) had had sexual encounters outside of the relationship in the year before the survey, and that the average number of extrarelational sexual partners for each member of the gay couples in the year before the survey was 7.1." Stanton L. Jones and Mark R. Yarhouse, "Science and the Ecclesiastical Homosexuality Debates," 26 Christian Scholars' Review 446, 47= (1997). Jones and Yarhouse also report on a study of 1000 gay and 800 lesbian couples reported in P. Blumstein and P Schwartz, "Intimate Relationships and the Creation of Sexuality," in D.P. McWhirter et al (eds.), Hemosexuality/Heterosexuality: Concepts of Sexual Orientation (Oxford University Press, 1990), 319, 319 (footnote 9). The study 'found a sexual 'nonmonogamy'. occurrence rate across the life of the couple relationship of 79% and 19% respectively, and reported that only 36% of gay men and 71% of lesbians value sexual monogamy." Jones and Yarhouse, 572. It should be noted that none of these studies prove (or can prove) that gay male couples are incapable of monogamous. relationships. They do suggest, however, two things: (1) that monogamous relationships are not the norm, and (s) that they are not valued as the norm. For a j' contrasting view, see Samuel A. Marcosson, "The Lesson of the Same-Sex Marriage Trial: The Importance of Pushing Opponents of Lesbian and Gay Rights to ; Their 'Second Line of Defense,' 35 University of Louisville journal of Family Law,; 721 (1996-1997).
43 Virtually Normal at 202.
44 In his words, speaking of 'Gay Couples as Models of Family Life,"'And so monogamy (it appears) is not an essential component of love and marriage.” Richard Mohr, "The Case for Gay Marriage," 9 Notre Dame Journal of Law, Ethics & Public Policy 215 (1995), 233 In his book this statement appears without the caveat "(it appears)": "Monogamy is not an essential component of love and marriage.' A More Perfect Union (Beacon Press, 1994), 50.
45 On domestic partnerships, see above at note 25. On reparative therapy, see Joseph Nicolosi, Reparative Therapy of Male Homosexuality (New York: Jason Aronson, 1991).
46 See Martine Rothblatt, The Apartheid of Sex: A Manifesto on the Freedom of Gender (New York: Crown Publishers, 1995), who speaks of "five billion sexes."
47 Most liberationists contend that the reproductive character of sexual organs is no more than a biological "brute fact." It has no necessary meaning or implications for sexual behavior. The fact that some people see such meaning and implications only betrays their conventionality.
48 Eskridge ridicules this as the idea that male-penis-in-female-vagina intercourse per se contributes to communion." Case for Same-Sex Marriage, at 96-98, 242 n.27. Stephen Macedo is similarly credulous in his "Homosexuality and the Conservative Mind," 84 Georgetown Law Journal 261 (1995). These characterizations of the view that sexual union creates a distinctive community miss the integral connection between sexual organs, embodiment, and personhood.
49 Instead, they make the following argument: (1) it is possible to procreate without marriage (or indeed without sex at all); (2) heterosexual Americans are permitted to do it; (3) procreation is a fundamental legal right, therefore (4) sex, procreation and marriage have no necessary relation, and any attempt to assert one would be interference with the fundamental rights of the individual. See, for instance, Baker v. Vermont, Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss (filed Nov. 25, 1997), 72-75
50 When one considers what has been written on marriage, past and present, by those who understand it as a unique sexual community, the idea that it is all "irrational" boggles the mind. For a creative recent philosophical reflection on these questions, see J.L.A. Garcia, "Liberal Theory, Human Freedom, and the Politics of Sexual Morality," in Paul J. Weithmann (ed.), Religion and Contemporary Liberalism (Notre Dame, In.: U. of Notre Dame Press, 1997), 218-51. One of the most eloquent and accessible scholarly writers on marriage is Professor Gilbert Meilander. See his recent articles, "The Meaning of the Presence of Children," in M. Cromartie (ed.), The Nine Lives of Population Control 149-60 (Grand Rapids, Mi.: Ethics & Public Policy Center/Eerdmans, 1995), "The Venture of Marriage," in C. Braaten and R. Jenson (eds.), The Two Cities of God 117-32 (Grand Rapids, Mi.: Eerdmans, 1997), and "The First of Institutions," Pro Ecclesia 6:4 (Fall 1997), 444-55
51 For a discussion of this triad, see Hafen, in Wolfe, The Family, Civil Society, and the State.
52 Eskridge lists the States with "operative" consensual sodomy laws, in The Case for Same-Sex Marriage, at 135-136. He views these laws as unconstitutional invasions of privacy.
53 "I know in my heart of hearts that cannot be wrong." Quoted in Thomas H. Stahel, SJ., "I'm Here': An Interview with Andrew Sullivan,” America (May 8, 1993), 5-11 quote at 6.
54 Virtually Normal, 184.
55 "The Marriage Moment," 63.
56 For eloquent statements of these argument:, see Jeffrey Satinover, Homosexuality and the Politics of Truth (Grand Rapids, Mi.: Baker Books, 1995), John F Harvey, The Truth About Homosexuality: The Cry of the Faithful (San Francisco: Ignatius Press, 1996), Thomas Schmidt, Straight and Narrow? Compassion and Clarity in the Homosexuality Debate (????: InterVarsity Press, 1995).
57 The influence of this ideology can be seen in remarks by Ritch Savin-Williams, author of the recent book, "...And Then I Became Gay" (1997). "I'm 48,' Savin-Williams explained. 'The overwhelming number of Gay men of my generation had Gay sex before we identified as Gay. Now, an increasing number of kids identify as Gay prior to having Gay sex. It's a dramatic change, one that I sense will become increasingly apparent as kids see more positive Gay images." Greg Varner, 'The kids are all right; Author says Gay teens are happier and come out earlier," The Washington Blade (Jan. 23,:998), 33. Note also the capitalizing of "Gay".
58 See the resources referred to in the Satinover and Harvey books mentioned in note 8. In the words of Gerard van den Aardweg, "This picture is much more optimistic than emancipatory homosexuals-who have a vested interest in the dogma of the irreversibility of homosexuality-would make u: believe. On the other hand, success is not so simple as some enthusiastic people from the ex-gay movement have sometimes contended." The Battle for Normality (Ignatius, 1997) at 12. In any case, as van den Aardweg maintains, "Marriage is not the direct goal of the battle for sexual normality; it should not be artificially or spasmodically set as a target." Ibid., 148.
59 Baker v. Vermont, Superior Court Docket No. S1009-97Cnc, State of Vermont's Motion to Dismiss (filed Nov. 10,1997). Rather than burden the text that follows with numerous footnotes, the reader will find the State's reasons discussed in 52-65 of the State's Motion.
60 In Hawaii, as we observed earlier, some Justices found these kinds of arguments persuasive and others did not. In Vermont, the trial judge responded to the Attorney General's arguments by concluding that the law has a rational basis-the goal of maintaining a connection between procreation and child-rearing-and throwing out the case. In her decision, however, she dismissed all the other reasons offered by the State: See Baker v. Vermont, Chittenden Superior Court, Docket No. S1009-97CnC, Opinion and Order (filed Dec. 9, 1997).
(✝ 2002) Lawyer and director of the "Marriage Law Project" at the Columbus School of Law, Catholic University of America. Employee at the Ethics and Public Policy Center in Washington, DC.