Gay Marriage: New Definition or Contradiction in Terms?

Grant’s thought-provoking post and accompanying discursion inspired me to write a mini-manifesto on gay marriage and related issues.  I’d like my friends who disagree with me to better understand that there is plenty of logic to go around in this debate, as much as I have had that same realization while listening to their arguments.

Before I get into my principal points,  I should briefly disclose a couple things that shape my perspective when analyzing homosexuality generally.

1) I believe that God is clear, through the bible, that homosexual activity “misses the mark” he has set for human sexuality.  In his comment to Grant’s post, Christopher brings up several hermeneutical difficulties in interpreting “…you shall not lie with a male as one lies with a female; it is an abomination” (Leviticus 18:22) literally, while disregarding the literal sanitary prescriptions in the same book of the bible.  I respect his thoughtful perspective.  Suffice it to say that it is a complex discussion that I don’t have the time nor desire for here.  However, as you can tell, I locate myself in the traditionalist camp.   I also appreciate a couple things that perhaps seem to separate me from many other Christians on these issues.  I) I’m not sure that being gay is a conscious or even a subconscious choice.  I think sexual orientation may be guided by biology as much as environment (or even principally), but surely I’m not even a novice on that debate.  However, I don’t think it matters much to my spiritual analysis, since I also believe in original sin—we are predisposed to sin, biologically speaking.  II) I think the bible creates a distinction between homosexual orientation and homosexual activity.  As I read the relevant passages, only the latter is condemned, not the person who has those inclinations.  We may have worthy or unworthy natural desires worthy or unworthy, but it matters if and how we act upon them.

2) Related to my last point, gay people are created in the image of God and deserve the dignity of respect, love, freedom and legal protection, just like anybody else.  From my religious and common sense standpoint, the Ugandan legislation Grant writes about far exceeds the “uncommonly silly law” (Justice Thomas) at issue in the Supreme Court case Lawrence v. Texas.  In fact, I think it is probably inspired by evil, as are relatively benign placards that declare God hates people of certain orientations.

That said, I am against gay marriage and think that are many people who love homosexuals but substantially agree with my perspective.  And in some ways it’s unfortunate I find it necessary to lay out my spiritual convictions above, because I think that gay marriage can be examined from a solely secular perspective, as I’ll attempt to do now.

First, there is an issue whether marriage is a right or not.  Loving v. Virginia declares that “marriage is one of the basic civil rights of man,” yet honestly, I can’t imagine how this can be so in the governmental context.  A person is entitled to be classified as a certain status by the government?  That seems so arbitrary.  I see it as a privilege—something that the government recognizes for a certain class of its citizens, prudently as I would argue in this case, to further some state interest.  Personally, however, I would find no manifest injustice if government exited the marriage realm entirely, leaving it entirely as a sacred institution.  Of course, the government sanctions marriage because more than any other type of relationship, it tends to facilitate procreation and stability of society.  Whether you favor recognizing gay marriage or not, that is a central fact in this debate; not to demean others outside of such a relationship, but there is no building block as fundamental to civilization as a nuclear family.  Such is important to understand in order to see why government confers benefits on this type of relationship; if you do not grasp this fact, you are bound to think the case against gay marriage is discriminatory.

Although gay couples are allowed to adopt children in some states, generally homosexual relationships do not further the government interests in the same way, or to the same extent, that heterosexual marriages do.  (However, I could see a relatively compelling case for gay marriage for couples that adopt children, although that would open up a whole new set of issues.)  To be sure, government recognizes marriage for additional reasons than what I cited above—as a convenience and courtesy to those who wish to arrange their legal affairs to reflect their every day lives (taxes, administration of estates, etc.), and this is why many people like me think it’s probably best to recognize civil unions that provide the same legal status and benefits that marriage does, even though this is a concession, given that civil unions don’t further all the same interests marriage does.  (Proponents will no doubt argue that current civil unions don’t confer all the same privileges as legal marriage, to which I’d say that we should change the civil union laws then).

Unfortunately for many people, civil unions are not good enough.  I understand that perspective to a certain extent, but realize that such people aren’t really after equal legal status nearly as much as societal acceptance.  For me, the whole issue centers around language and condoning certain activity.  No wonder so many people, including President Obama, have issue with “gay marriage.”  First, it would be changing an almost immutable definition.  I tend to see language (and the Constitution) as most beneficial when static.  If we may change the meanings of words lightly, we lose a major preserving agent of culture.  Second and related, modifying the meaning of a word can mislead people into ascribing the clout that heretofore the word had carried to new situations that may not deserve the same weight, or in which they otherwise would not have done so.  (Of course, some say that gay couples deserve that same clout as married couples, but there’s no reason “civil unions” cannot earn the same type of standing as “marriage”.)  Even though many gay marriage proponents tell you that it’s disingenuous for heterosexuals to claim that marriage is a sacrosanct institution, since heterosexuals have wrecked marriage with high divorce rates, apparently the word still has enough capital to fight over.  Believe me—rhetoric and language are important when you’re trying to convince someone to accept something, and by speaking of a “right” to gay marriage, it further prejudices the case without many people realizing it, since hey, who could be against rights?
Let’s assume for the sake of argument that marriage is a right because it will make the rest of my argument (which is what I’ve really been getting to) more understandable.  From a strictly logical and legal standpoint, gays and lesbians have that right—they have the right to marry people of the opposite sex, just as much as any person, in order to serve the government interest.  But while logically true—that no one is really denied the right to marriage—I’m sensing that not everyone is satisfied by this conclusion.

Fine.   But how would we have to define the right to include homosexual relationships?  How’s this: the right of a person to marry another consenting person of any gender.  (And since we’ve now fundamentally altered virtually the only definition of marriage of pretty much all societies in the history of the world, up until the last 15 years or so, we may be ready to concede that marriage no longer has to be between just two people—it could be between 3 or more.  But let’s keep it two people for the sake of illustration).  Fair enough.  But by this definition, how do you prevent a brother and sister from marrying each other?  What about mother and a son of the age of consent?  Cousins?  I really don’t see how you could exclude familiar relations from marrying each other, since they fit our new definition of marriage.  Now, to be sure, these would prove to be rare cases, but are you prepared to accept them?  The same kind of intuitive sense that may cringe inside you to realize that homosexuals have the right to marry the opposite sex probably objects to allowing people to marry their siblings.  If not, then I applaud your consistency, and think you’ve reached a purely logical conclusion (much like mine in the paragraph above).  In that case, I’d rather enact a marriage regime to fit all logical conclusions now, because the slippery slope is too long and painful to tumble down.  However, if your common sense is repulsed by letting children marry their parents, like mine is, I think the only explicit reason we can come up with relates to procreation.  Interestingly, one of the principal objections to gay marriage deals with procreation as well.  But if we discriminate against homosexuals because we don’t allow them to marry, how are we not discriminating against cousins?

Of course, like I said, the last two paragraphs don’t have to be necessary if we recognize civil unions with all the legal incidents of marriage.

I don’t mean to sound so cavalier when talking about relationships that others hold dear.  I fully admit that it’s easy for me to opine on such things from the relatively comfortable perspective of heterosexuality.  And I certainly think that God is the ultimate arbiter in all things sexual, mine included.  Lastly, I don’t think this issue is *that* important either way.  But I hope I’ve demonstrated tthat people against gay marriage have honest reasons for this position besides merely disliking gays or wishing to discriminate against them.

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23 Comments

Filed under Brandon

23 responses to “Gay Marriage: New Definition or Contradiction in Terms?

  1. Christopher

    Thanks for your thoughtful post, Brandon. I always enjoy reading your well-designed viewpoints, even when we disagree. There are two sides to this coin: civil and theological. I shall attempt to address both.

    First, CIVIL: One thing we seem to agree upon is the philosophy that the state and federal government should have no role in the business of marriage, civil unions, or the like. I come to this conclusion from a different angle: whereas you attribute government support of the social institution of marriage to the supposed positive effects of procreation and societal infrastructure, I see it entirely as a way for governments to make money – and they do!

    When two people are to be joined in a civilly recognized marriage, they pay a fee for a “marriage license.” When 50% (+ or -) of those marriages fail, those people pay exponentially more money to the state to dissolve that “license.” In our country we need licenses to drive cars, prescribe medicine, practice law, build houses and so on. Each of these licenses are earned by the holder on the basis of education and skill – but not for marriage! And of course there is no license to procreate – the strongest qualification you presented in favor of heterosexual marriage. So logical people can agree that there is no reasonable justification for a marriage license other than the fact that the state can make money off it, as well as the dissolution of it. Anyone who has ever been married and divorced understands first-hand the ridiculousness of state interference in such issues.

    I propose that the marriage license is a method of state sanctioned discrimination. It is an accepted way in which a majority of people can force their definition of a word upon the rest of society. This is proven by the fact that marriage is regarded as a state issue. In some states mentally retarded people can marry, in others they may not. The age of consent for couples is inconsistent across states, as is the distance of biological relation. Some states that reject “no-fault divorce” support “covenant marriage,” under which it is legally more difficult to obtain a divorce. The inconsistencies between states (and even counties) regarding marriage are innumerable. Some of these stipulations are based in back-country folk wisdom – as we witnessed last month when a Justice of the Peace in Louisiana denied a license to an inter-racial straight couple on the grounds that the divorce rate was too high for racially integrated families.

    These inconsistencies are contrary to the equal protection clause and are therefore unconstitutional. Ultimately, the state sanction of marriage (if not provided to all consenting adults) is an arcane and highly discriminatory practice.

    Secondly, the THEOLOGICAL foundations upon which you define marriage: We disagree, and this is fine just as we may disagree on the filioque controversy, the communion of saints, transubstantiation, or anything else. But people must also recognize that scripture too is inconsistent on the definition of marriage – pluralistic, Levirate, group, slave, rapist to victim, proprietary, etc. And though I may feel very strongly regarding the frequency with which we celebrate the Eucharist, I will not attempt to legislate against someone who feels it should be celebrated less frequently.

    My point is: our personal biblical interpretations have no place in civil law – the sacrament of marriage included.

    So to counter the name of your post, this is not a redefinition OR a contradiction in terms….for marriage has had many definitions, many of which contradict one another. Your reasons against gay marriage may be “honest” in that they reflect true human feelings; however, I believe you’d agree that feelings are not justification for civil law.

  2. czf

    Lots to talk about here Brandon. A thoughtful response, in general, and I’m only making a single comment tonight.

    You think language is most beneficial when static. When was that? Language is by definition organic and shifting, and to be frank, trying to oppose the growth of language usually ends poorly.
    That has little to do with the marriage debate on the whole, but I think it is an important point.

    Language is not and never has been static.

  3. Sara

    I have a couple of points/questions about the initial post…

    B – you mention that you “would find no manifest injustice if government exited the marriage realm entirely, leaving it entirely as a sacred institution.” I can understand why you make this point, but wouldn’t such a decision effectually exclude a rather large percentage of the population who don’t practice any religion and wouldn’t want a religious marriage ceremony? Are you suggesting that in this situation, a (religious) marriage would confer the same rights and benefits as would a civil union?

    You also argue that one reason the state sanctions marriage (and I think you’re getting at a fundamental rights/compelling state interest??) is for procreation. What about infertile couples or couples that don’t want to have children? We don’t exclude them from the benefits of marriage, so procreation can’t be a narrowly tailored compelling state limitation on the right to marry for gay people if it isn’t for strait people. Nor can the stability of a nuclear family withstand strict scrutiny. I would suggest that strait couples are no more likely to remain in a stable, functioning relationship than gay couples. So many marriages end in divorce these days that it seems tenuous to suggest that a marital relationship between a man and a woman is any more stable than that of a gay couple or an unmarried couple. However, we don’t exclude those who show a propensity to form unstable nuclear family groups from the right to marriage, so why can that be a compelling state interest when applied to the issue of gay marriage?

    Third, if you see the language of the Constitution to be most beneficial when static, how do you view the amendments to the language that allow for non-white people and women the right to vote? And where in the Constitution does the document even expressly state the word “marriage?” My understanding of the law is that the right to marriage, which you mention above as the holding in Loving v. Virginia, is included in the right to privacy – a right not specifically enumerated in the Constitution. Therefore, wouldn’t the existence of such a right be entirely dependent upon a dynamic document?

    Speaking of the Loving case, my next point centers on your statement that “gays and lesbians have that right —they have the right to marry people of the opposite sex, just as much as any person, in order to serve the government interest.” The Loving case involved an interracial couple who were married in a state other than Virginia. Upon their return to VA, they were charged with the felony of miscegenation. The proponents of the VA statute which prohibited interracial couples from being married out of state and then returning to VA argued that it didn’t violate the Equal Protection Clause because it wasn’t excluding black people or white people (or any specific racial group) from the right to marry – so long as it wasn’t to another person outside their racial group. They had the “right,” but that right was limited as to whom they could marry – just as your argument suggests that gay people have the “right” to marry, they are just limited as to whom they can marry. I would suggest that this is, indeed, inequality.

    My last point touches on your suggestion that allowing gay people to marry would so fundamentally change the definition of marriage as to allow the possibility of including more than two people in the bond of marriage, or for some form of incest to be sanctioned by the state. I suggest this is not so. The state has a compelling interest in preventing incest, just as it does in preventing polygamy; however, the state arguably has no narrowly tailored compelling interest in excluding gay people from the right to marry. Therefore there is no danger of a slippery slope.

    I realize, looking back on what I have written, that I sound a bit contentious. That is definitely not my intent. I am just hoping to better understand your position… : )

  4. blraatikka

    Guys– thanks for the comments. I don’t have time to touch upon all the interesting thoughts provoked by them, but will engage a few:

    Christopher– I had never thought of legal marriage as a way to raise revenue for the state. It’s my understanding that tax breaks, etc. given to married couples actually are costly to the government. But your assertion here is intriguing, and the existence of marriage license fee implicates an additional wrinkle that may tend to show we don’t think of marriage as a fundamental right. Indeed, a poll tax is unconstitutional, because it places an obstacle in the way of exercising the fundamental right of franchise; perhaps if we want marriage to be a right, then we should abolish all license fees under the same rationale. And like you, I have no idea what they are for, other than a money grab for the authorities.
    As far as the inconsistencies between the states in marriage regimes– I see your point, but family law is a matter of state, rather than federal, jurisdiction. It is as if we live in 50 different countries, and the federal equal protection clause has no power to require consistent laws across the states. Whether good or no, it is federalism.
    I’m not sure whether I would argue that feelings are a good or bad basis for civil law. I wouldn’t necessarily call them “feelings” in this case, but rather the overwhelming conviction of nearly all the cultures of the world (recognizing too, as you bring up, that not everything about marriage has been consistent across times and societies). But while I’d have to think more about it, I want to agree with your premise. That’s why I think it’s probably appropriate to recognize civil unions as a courtesy to our fellow homosexual citizens. To me, language is the most important aspect of the whole issue.

    CZF– I spoke a little carelessly; I didn’t mean language should be totally static, but that ideally, it should retain certain static elements in order to be useful. The size of our lexicon should be dynamic– we should continually come up with new words to describe new realities. However, the meanings of words themselves (in particular contexts) should remain as constant as possible; otherwise the efficacy of communication is diminished. If words do not carry the connotations we have mutually agreed upon beforehand, what’s the point in speaking? We would not be able to communicate clearly because we can’t fully ascertain what the speaker is intending to describe. The thrilling paradox about language is that it is completely arbitrary—we agree certain markings on a page, or certain phonetic sounds, mean x instead of y—but in as far as possible, we must insist on its objectivity in order to make it as useful as it can be. Words are like tools. A hammer is meant to pound a nail. It is less effective if you try to use it to sing a song. If you could, what we have then is no accurate, narrow or singular conception of what a hammer is, because it’s nearly impossible for conceive of something that could do such disparate things.
    I know you know all this, but I wanted to clarify what I meant. I realize that there is an inevitable drift of human language, and words do gradually change their meanings over time, or acquire new meanings. But I dispute that this should be intentional without a very compelling reason. After all, what’s better—to have one word to describe two similar, but also very different realities? Or two words to each specifically denote separate realities? The second option allows for much more precise and meaningful communication.

    Sara, much along the same lines, I think the Constitution should be static. If we interpret it dynamically, we find that we can change its meaning all the time, which means that it means nothing in particular. You bring up amendments, which I’m all for (and I happen to think those that you cited are good amendments)—the framers of the Constitution provided that the document be changed through an orderly process (because they knew it should change). You don’t like what the Constitution says? Lobby for an amendment. But to do violence to language (see above) by finding some amorphous emanation from a penumbra of a right to privacy—well, you can drive an entire boat show into that and find that the Constitution can solve all your problems! (But one thing that you would find is that the Constitution would cease to be of any real use, since it could mean just about anything. Instead of a a rule of law, that would foster inefficient and expensive legal anarchy.) Here’s something that would shock many people: the Constitution was not meant to guarantee everything that we could ever imagine as fair, just, or equitable. Just because I like the result in the Loving case, doesn’t mean that the Constitution really had something to say about it. (Relax; I think it probably does, but it’s not a clear cut case). A right to abortion? It might be nice, it might even be correct, but the Constitution says nothing about it. Like it or not, but Roe v. Wade is widely criticized (by liberal scholars as well as conservative) as one of the worst Supreme Court opinions in terms of legal reasoning. You know what would have been better? An actual amendment that addressed abortion. That way, language can give us instructions, instead of us giving instructions to the language. (You’re right, by the way—“marriage” is not in the Constitution. It is intended as a state law matter. I don’t think gay marriage proponents say that the federal Constitution bolsters their case, nor detracts for it. They are trying to make it bolster their case, however, by securing an amendment that defines marriage for federal purposes. I find this route completely permissible, though I’d rather see the whole matter left to the states because I believe in federalism.)
    As for compelling interests, what is the government interest in prohibiting incest, if there are two consenting relatives? What is the compelling government interest in preventing polygamy? (I didn’t bring up polygamy because technically it fits my traditional definition of marriage—each marriage is still between one man and one woman.) And don’t worry Sara; I didn’t read you comments as contentious at all.

    You guys have brought up some good points, but no one seems willing to accept my concession of civil unions (although Christopher agreed that it may be best if the government quit the marriage realm entirely). Why is that?

  5. Christopher

    To answer your question, Brandon: it’s best if the government quit the marriage business because its limited definition trespasses upon the rights of sovereign and consenting adults to make decisions for themselves. As Americans we value our civil liberties without interference from the government…that is, until we don’t agree with someone else’s personal life (and this is the problem). I’m on a quest to achieve consistency in my thinking, as hard as it may be to accept at times.

    Whether we personally agree or disagree with gay marriage is really superfluous to the point. To borrow a phrase you used in your original post “It’s not really THAT important an issue.” If 17 men want to be “married” to one another, then so what? Specifically, how does this infringe upon your personal rights as an American?

    Brandon, you bring up a great point regarding language. Language DOES have everything to do with this debate. We could call marriage a different word like “snooker”; however, as long as the government allows snooker for one portion of the population then it is legally obligated to allow snooker for any consenting adults who desire to partake in it. This is an issue of civil rights.

    Great discursion!

  6. Sara

    B – just a quick response…

    I agree that the framers of the Constitution intended amendments to be the proper procedural approach to changing the document – not legislation from the bench. However, every document needs to be interpreted. Interpretation happens all the time with historical and modern documents. Interpretation is a completely different interaction with the document than writing an amendment is, as the former is intended to determine meaning, while the latter is intended to replace meaning. The same exact (static) sentence can mean different things to different interpreters over time. Perhaps we have Marbury v. Madison to thank for judicial review, but I could argue that the concept of judicial interpretation of the law v. the legislative amendment route is more efficient and is a natural consequence of the application of a historical legal document to modern issues of law. I think it is hugely important to note the difference between actually changing the document v. interpreting its meaning. And why, exactly, would it be so dangerous for a document to be dynamic?

    I also agree with your point that marriage was intended by the framers to fall within the purview of the state. But it is rather impractical to argue that the right to marry should remain a state law matter now that it has been held to be a fundamental right. The use of the Constitution in Loving v. Virginia to invalidate the VA statute, thereby including the right to marry within the fundamental right of privacy, has taken that right out of the purview of the state. I’m not suggesting that it should have, or that a federal amendment to the Consitution to define marriage is necessary. I’m suggesting that it should be equally applied to gay and strait couples. I think that we can come to the conclusion that the state’s interests in excluding gay marriage do not withstand strict scrutiny – thereby granting said right – without an amendment. Wasn’t this the mechanism by which certain states legalized gay marriage?

    Speaking of state interests, I think that at least one difference in gay marriage and incestuous marriage is that with the latter, you have a significantly higher danger for genetic mutation and resultant severe medical complications. Not to mention that the potential for victimization, undue influence, etc. are all higher in the case of incest. However, it wouldn’t be the first time in history that two closely related people got hitched! Just look at the royal families of Europe : )

  7. GCC

    Thanks for posting this, Brandon. I’ve been looking forward to reading your thoughts on this issue. After having read through it a couple times, I’d like to clarify the points I think you’re trying to make. Here’s what I’m seeing from you in this matter:

    1.) Marriage is not a right. Rather, it is a privilege conferred by the government on a particular class of citizens and not on other classes of citizens. This privilege is based on the special class’ ability to further government interest. – P6

    2.) Homosexual, transgender, and transsexual relationships do not further government interests, while heterosexual relationships do – hence the exclusivity of what you see as the privilege of marriage. – P7

    3.) There is only one definition of marriage, which definition applies to “pretty much all societies in the history of the world,” and which definition is immutable. – P8&10

    4.) This definition must be preserved because language should be static in order not to confuse people and to preserve culture. – P8

    5.) You are in favor of civil unions that are absolutely identical to marriage. – P7

    6.) Logically, homosexuals and heterosexuals have equal marriage rights/privileges, because they can all enter into marriage with a person of the opposite sex. – P9

    7.) Marriage between homosexuals and heterosexuals would serve government interests. – P9

    8.) You think that marriage can and should be defined in a single sentence and that proponents of same-sex marriages would define marriage as: “the right of a person to marry another consenting person of any gender.” – P10

    9.) If same-sex marriages are legalized, society will be led down a path that will include the inevitable legalization of incestuous marriages, pedophiliac marriages, and other such things. – P10

    10.) “The only explicit reason [one] can come up with [to deny marriages between children and parents] relates to procreation.” – P10

    11.) The principal objection against gay marriage deals with procreation. – P10

    12.) A homosexual marriage is analogous to an incestuous marriage. As a result, to be internally consistent, those who feel same-sex couples are discriminated against must also declare that cousins in long-term committed relationships who can’t marry are also discriminated against. – P10

    13.) The issue of equality is not particularly important to you. – P12

    14.) For all these reasons you are against same-sex marriage. – P5

    The opening and closing of this post make clear that a primary intent of yours is demonstrate logical, well reasoned, honest, rational arguments against same-sex marriage, so before I comment on any of this, I’d like to be sure we’re on the same page. Could you let me know if I’ve distilled your post down into what you see as appropriate and accurate bullet points? For reference, I tried to include at least the paragraph from which I pulled each point. (I counted 12 paragraphs in total.)

    Thanks!

  8. GCC

    I find my 13th point above to be rather equivocal, and thus not really affirmable or deniable in this context. Let me revise it to say:

    “13.) An issue that others experience as fundamentally about human equality and their human dignity vis a vis their fellow humans is not particularly important to you.”

    Thanks!

  9. There’s also a little problem with people who are Intersexed –

    “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

    So tell me again how the laws against same-sex marriage preserve its solemnity. Because from my end, such legal issues make the whole thing a farce.

    It’s reminiscent of the anti-miscegenation laws, where someone could be of one race in one state, and another in another. But in both, forbidden to marry anyone not of the same race.

  10. czf

    Brandon,
    This is a subject that gets me into trouble a lot these days, as I find myself getting impatient. I can’t really keep a cool head on any longer. so be forewarned, I usually try to avoid the gay marriage subject.
    that said, here’s a few comments.

    You make a logical sound case for your position. I just happen to think it’s totally wrong.

    I have never heard anyone make a strong argument that allowing homosexual marriage will lead to polygamy, incest, or any other relationship gaining legal rights. That doesn’t make sense, and it’s an offensive notion in my opinion. There is no slope hiding behind gay folks that the nation will slide down.

    Much as it may have been, or we might wish it to be, procreation is not why the government sanctions marriage. This has been addressed in the comments above, suffice it to say that having children has nothing to do with marriage, and marriage has nothing to do with children. Much as one might wish it were otherwise. (If it does, we need to give out fewer marriage licenses, because we seriously need to have fewer people on this planet (gasp! oh population control, when can you openly be discussed in America?)). [double brackets!]

    Finally, Zoe Brain is right. Sexuality can’t be defined as easily as your post hopes. There aren’t two categories of people: Homosexual and Heterosexual. To assume that we can break sexuality into such categories is oversimplified, exclusive and unnatural. This is getting off the marriage debate a little, but it is relevant because it is about definitions. The last thing the transvestite I was drinking with a few days back needs are stricter fucking laws and definitions describing her as a man who can only marry a woman even though he is a she that is looking for a man. As far as I’m concerned, she has a right to a home in our marriage laws. but unfortunately, as long as she is who she is, she doesn’t.

    the legal ramifications and definitions and precedents I’ll leave up to others.

  11. whb

    wow. That’s a lot of reading to catch up on. I have to say, I can’t agree with much in this post, though it is thoughtfully written. My reasons are: 1) marriage has never been a static institution (hell, it hasn’t been an institution that long). To pretend that it once was or has been a sacred, beautiful thing and ignore that only in recent history (a century perhaps?) has it moved away from being about labor and property doesn’t work for me.
    2) The constitution and no other thing in the world can have a static interpretation. It is always a product of its material production and interpretation is the same.
    3) I don’t buy the slippery slope argument either. The reasons for a mother not marrying a son are far different than those of a woman being able to marry another woman.
    4)As others have said, the whole gov. sanctions hetero marriage because it is good for procreation doesn’t work either.

    In summary, marriage as it is conceived right now by the public is a semi-religious institution (or at least vaguely transcendent) union of two people that is recognized and sanctioned by the state and/or church. My proposal will never happen, but I only wish that the roles would be separated: religious institutions marry people and governments sanction unions. That way we can stop conflating whatever Bible verses we find with what is good for society.
    (hope that didn’t sound bitchy… it wasn’t written bitchy).

  12. Brandon

    Hi friends,
    I’ve been busy and out of town, but I haven’t forgotten this discursion. Sorry for getting back to this just now, and of course, I can’t respond to everything I’d like to.

    Grant, I’ll save my response to you in a separate comment below, since it will display as somewhat lengthy.

    Sara, you ask, “And why, exactly, would it be so dangerous for a document to be dynamic?” It’s dangerous in this particular context, because the document happens to be one of the most important documents of society. If we understand its meaning as fluid, then we won’t object when people (i.e., judges) read into it their preferences and desired outcomes, because after all, the document is supposed to be elastic. The less dynamic it is, the more likely it is to be changed only by the people that are intended to be able to change it. To me, this is elementary civics.

    Zoe Brain– what you’re really fretting over the fact that for purposes of family law, there are 50 different countries in the United States. Like it or not, that’s federalism.

    CZF– I appreciate your passion. Obviously, I disagree with your assertion that marriage has nothing to do with children. As I said, if you don’t think that the nuclear family is the fundamental building block of society, we will have to agree to disagree.
    As for your friend, and your observation that the sexual landscape does not simply divide to homo- and hetero-, I think my proposal of civil unions could cover additional situations. Interestingly, nobody has answered my question as to why we can’t have a legal regime that calls heterosexual unions “marriages,” and those which do not fit that category as “civil unions.” Again, why is this? It seems like a relatively elegant solution to me.

    Whb—don’t worry, I didn’t think you sounded bitchy. I think you’ll find that I respond to some of what you bring up in the comment to Grant below. Your proposal is logically consistent, and really is not all that different than my proposal of civil unions. In fact, it transcends my proposal in a way, and reaffirms the separate spheres in which unions between couples can exist—I admit that I can often conflate the two. However, this piqued my interest: you really believe that what the bible says and what’s good for society may not necessarily be the same thing? (Perhaps that’s an aside too unrelated to what we’re discussing here.)

  13. Brandon

    Grant, I’ll take your post point by point to clarify or affirm what you think I’m saying.

    1.) Marriage is not a right. Rather, it is a privilege conferred by the government on a particular class of citizens and not on other classes of citizens. This privilege is based on the special class’ ability to further government interest. – P6

    Even though the Supreme Court has held that people have the right to marry others of different races, I disagree with the jurisprudence in that it seems to imply people are entitled for the government to classify them in a certain way… it seems so arbitrary. So yes, I would say it is best understood as a privilege.

    2.) Homosexual, transgender, and transsexual relationships do not further government interests, while heterosexual relationships do – hence the exclusivity of what you see as the privilege of marriage. – P7

    Some homosexual, etc. relationships do further the specific government interests I cite, and some heterosexual marriage relationships do not. But by and large, heterosexual marriages have a significantly higher propensity to further those interests.

    3.) There is only one definition of marriage, which definition applies to “pretty much all societies in the history of the world,” and which definition is immutable. – P8&10

    I’d like to modify this a bit– there is only one characteristic of marriage that has been virtually immutable across all epochs, even where other details have varied significantly, and that is that marriage is between one man and one woman.

    4.) This definition must be preserved because language should be static in order not to confuse people and to preserve culture. – P8

    Yes, more or less.

    5.) You are in favor of civil unions that are absolutely identical to marriage. – P7

    Probably.

    6.) Logically, homosexuals and heterosexuals have equal marriage rights/privileges, because they can all enter into marriage with a person of the opposite sex. – P9

    Yes. This is completely unassailable from a logical standpoint. Whether homosexuals and heterosexuals have the same desire or tendency to avail themselves of this right is a separate issue.

    7.) Marriage between homosexuals and heterosexuals would serve government interests. – P9

    Yes, it could. It’s hard to imagine that these sort of cases would be numerous enough to affect our analysis– I mentioned it to illustrate my point.

    8.) You think that marriage can and should be defined in a single sentence and that proponents of same-sex marriages would define marriage as: “the right of a person to marry another consenting person of any gender.” – P10

    I’m trying to propose a definition of marriage that would fit both heterosexual and homosexual marriage. I don’t feel like it’s reductionist to do so, especially since heretofore, every society has been able to characterize exclusively heterosexual marriage with such pithiness. Or rather, the immutable characteristic of all the things human civilization has called marriage can be reduced to one sentence.

    9.) If same-sex marriages are legalized, society will be led down a path that will include the inevitable legalization of incestuous marriages, pedophiliac marriages, and other such things. – P10

    “Inevitable” is your word, not mine, but yes, I think it’s very possible. Note that the larger point here was to test my new definition of marriage to see what else might fit it. But I hope you and others may come up with a better definition than the one I proposed. I sense that you have other ideas!

    10.) “The only explicit reason [one] can come up with [to deny marriages between children and parents] relates to procreation.” – P10

    I guess not necessarily– Sara come up with that one, as well as one relating to undue influence, which I think is a stretch, since that could disqualify many heterosexual marriages, and we don’t seem to care about it.

    11.) The principal objection against gay marriage deals with procreation. – P10

    One of the principal objections, as I said.

    12.) A homosexual marriage is analogous to an incestuous marriage. As a result, to be internally consistent, those who feel same-sex couples are discriminated against must also declare that cousins in long-term committed relationships who can’t marry are also discriminated against. – P10

    I didn’t say they were analogous– I just said that they both fit the new definition of marriage that I proposed. As for your second sentence, I agree. How would you deny marriage to first cousins or siblings?

    13.) An issue that others experience as fundamentally about human equality and their human dignity vis a vis their fellow humans is not particularly important to you.

    No, it’s actually very important to me. Just because I disagree with same-sex marriage doesn’t mean I don’t believe in the dignity of every person. Again, I don’t know why we can’t come up with a different name for a homo-/trans-/etc.-sexual regime that has all the same legal incidents of gay marriage.

    14.) For all these reasons you are against same-sex marriage. – P5

    Yes. Going point by point makes it appear like my reasons form one long argument with several critical parts. In fact, I have at least three independent arguments against gay marriage found in the 13 points above.

  14. czf

    it is incorrect to claim that all human societies have defined marriage as being between 1 man and 1 woman.

    so. there’s that.

  15. blraatikka

    I said “virtually,” but I can’t think of one example from before the last 15 years where marriage was something other than between one man and one woman. Am I missing something?

  16. czf

    Really? Did we discount polygamy, or does that fall under another category? I’m sincerely asking, because the practice of marrying multiple wives is not obscure, or new, in societies across the globe and across religions…
    Oh…
    I just read your post above about how polygamy doesn’t count because technically it’s between still a marriage between one man and one woman.
    that doesn’t make sense to me, but whatever.

  17. GCC

    Well crap, I missed something before, and now I need another point of clarification.

    I believe we’ve determined that you believe marriage is a privilege that is awarded by the government to a special class based on such class’ unique ability to further a (multiple?) government interest.

    What is that (are those) government interest(s)?

    Thanks!

  18. Sara

    Brandon,

    I think what you might be getting at with your pro-static argument is that dynamic documents are more susceptible to corruption and variation vis a vis its original intended purpose. Is that a fair assessment?

    And as far as the probability of civil unions being equal to marriages, I would suggest that the very fact that they are labeled differently in and of itself is evidence of inequality. To provide equality, the two must be the same in every effect: name, provisions, etc. Otherwise it’s just too much like Plessy v. Ferguson’s “separate but equal” doctrine that was overturned by the Court in Brown v. Board of Education. I realize this statement is perhaps an idealization of the law (and perhaps illustrative of your pro-static argument), but I believe that it will be arguments like this that will eventually play a part in the legalization of gay marriage. After all, Brown wasn’t the first suit for equality in education – it takes time.

    Thoughts?

  19. Christopher

    Brandon – you claim to use scripture as the basis for your belief that marriage exists exclusively between one man and one woman. You have also challenged the readership to name other societies where other forms of marriage are accepted. I address both concepts here:

    Despite your exclusivist stance on marriage, there are actually 9 types defined by the Bible.

    1. One Man – One Woman: Genesis 2:24 describes how a man leaves his family of origin, joins with a woman, consummates the marriage and lives as a couple. There were quite a few differences between the customs and laws of contemporary North Americans and of ancient Israelites. In ancient Israel:
    ◦ Inter-faith marriages were theoretically forbidden. However, they were sometimes formed.
    ◦ Children of inter-faith marriages were considered illegitimate.
    ◦ Marriages were generally arranged by family or friends; they did not result from a gradually evolving, loving relationship that developed during a period of courtship.
    ◦ A bride who had been presented as a virgin and who could not be proven to be one was stoned to death by the men of her village. (Deuteronomy 22:13-21) There appears to have been no similar penalty for men who engaged in consensual pre-marital sexual activity.

    2. Polygamous marriage: A man would leave his family of origin and join with his first wife. Then, as finances allowed, he would marry as many additional women as he desired.
    ◦ Lamech, in Genesis 4:19, became the first known polygamist. He had two wives.
    ◦ Subsequent men in polygamous relationships included:
    ▪ Esau with 3 wives;
    ▪ Jacob: 2;
    ▪ Ashur: 2;
    ▪ Gideon: many;
    ▪ Elkanah: 2;
    ▪ David: many;
    ▪ Solomon had 700 wives of royal birth;
    ▪ Rehaboam: 3;
    ▪ Abijah: 14.
    ▪ Jehoram, Joash, Ahab, Jeholachin and Belshazzar also had multiple wives.
    ◦ From the historical record, it is known that Herod the Great (73 to 4 BCE) had nine wives.

    4. Levirate Marriage: The name of this type of marriage is derived from the Latin word “levir,” which means “brother-in-law.” This involved a woman who was widowed without having borne a son. She would be required to leave her home, marry her brother-in-law, live with him, and engage in sexual relations. In Genesis 38:6-10, Tamar’s husband Er was killed by God for unspecified sinful behavior. Er’s brother, Onan, was then required by custom to marry Tamar. Ruth 4 reveals that a man would be required to enter into a levirate marriage not only with his late brother’s widow, but with a widow to whom he was the closest living relative.

    5. A man, a woman and her property — a female slave: As described in Genesis 16, Sarah and Abram were infertile. Sarah owned Hagar, a female slave who apparently had been purchased earlier in Egypt. Because Hagar was Sarah’s property, she could dispose of her as she wished. Sarah gave Hagar to Abram as a type of wife, so that Abram would have an heir. Presumably, the arrangement to marry and engage in sexual activity was done without the consent of Hagar, who had such a low status in the society of the day that she was required to submit to what she probably felt were serial rapes by Abram.

    6. A man, one or more wives, and some concubines: A man could keep numerous concubines, in addition to one or more wives. These women held an even lower status than a wife. As implied in Genesis 21:10, a concubine could be dismissed when no longer wanted. Abraham had two concubines; Gideon: at least 1; Nahor: 1; Jacob: 1; Eliphaz: 1; Gideon: 1; Caleb: 2; Manassah: 1; Saul: 1; David: at least 10; Rehoboam: 60; Solomon: 300!; an unidentified Levite: 1; Belshazzar: more than 1.

    7. A male soldier and a female prisoner of war: Numbers 31:1-18 describes how the army of the ancient Israelites killed every adult Midianite male in battle. Moses then ordered the slaughter in cold blood of most of the captives, including all of the male children who numbered about 32,000. Only the lives of 32,000 women – all virgins — were spared. Some of the latter were given to the priests as slaves. Most were taken by the Israeli soldiers as captives of war. Deuteronomy 21:11-14 describes how each captive woman would shave her head, pare her nails, be left alone to mourn the loss of her families, friends, and freedom. After a full month had passed, they would be required to submit to their owners sexually, as a wife.

    8. A male rapist and his victim: Deuteronomy 22:28-29 requires that a female virgin who is not engaged to be married and who has been raped must marry her attacker, no matter what her feelings were towards the rapist. A man could become married by simply sexually attacking a woman that appealed to him, and paying his father-in-law 50 shekels of silver. There is one disadvantage of this approach: he was not allowed to subsequently divorce her.

    9. A male and female slave: Exodus 21:4 indicates that a slave owner could assign one of his female slaves to one of his male slaves as a wife.

    It should also be mentioned that polyandrous marriage exists throughout history in various forms, most recently in Tibet.

  20. Christopher

    Oops….forgive me! 8, not 9.

  21. blraatikka

    CZF– see my comment to Christopher, below.

    Sara– I do believe that is a fair assessment. Also, I think it’s reasonable to bring up Plessy v. Ferguson; in fact, I had anticipated it. (And I could provide a few factors to distinguish the civil rights movement and the gay marriage movement, but I think that’s getting too far afield.) I still don’t know how using different labels to describe different situations necessarily clinches inequality, though, especially if we could design identical regimes otherwise. (The whole reason “separate but equal” invalid was because things were not in fact equal– if all the same incidents attended to our different labels, they would be equal in fact.) That brings me to what I believe the crux of the issue is: this isn’t ultimately about legal equality; it’s about societal acceptance. If it were primarily about legal equality, more proponents would jump at the prospect of (equal) civil unions. Instead, this is a fight about language because that is largely deterministic of societal mores. On this plane, I’m free to follow my religious convictions in opposing what I think is wrong in God’s eyes– that is perfectly reasonable. And I can do this by treating all people without reference to their particular sexual orientation (in fact, some of the more favorite people I’ve had in my life have been gay!).

    Grant– As I’ve implied above, the government interests that tend to be furthered by heterosexual unions more than by any other kind of relationship are procreation and societal stability. Again, I think the fundamental nature of the nuclear family is highly unappreciated; perhaps a few more decades of European decline will sadly and forcefully illustration the point.

    Christopher– Thanks for providing those biblical examples. They certainly present difficulty for the perspective that marriage has had a tight, primarily romantic aesthetic throughout history, including the history of what I consider to be “God’s people.” (It’s also important to remember that God wasn’t pleased with all of those situations, and of those variations that he was, he sanctioned them. Are you suggesting that he’s created such a disorganized marital regime as to be malleable, or that we cannot draw conclusions from it/them?)
    That’s not quite what I’m claiming, however. Although I think your implied conclusion–that the strict marital ideal championed by most gay marriage opponents does not take nearly as much support from the bible and human history as it appears to our 21st century American mindset– from the evidence you site is reasonable, I actually think your evidence can cut both ways. In fact, I can also tell you with a straight face that I think the evidence could actually strengthen my position. CZF, this is meant for you too. Whatever differences have existed in marriage across human society, from being arranged by family to those in the relationship itself, from between slaves or free people, adults and relative children, people in one marriage relationship or many others, marriage has still meant in virtually all of those cases (as if the cacophony of voices about what marriage is otherwise have agreed in resounding accord): the relationship of one man and one woman not related by blood (with the implication that such a union can provide healthy offspring). That is the only immutable characteristic of what has been called “marriage,” proven across history. Any why is this so? Is it because the union of one man and one woman transcends the particular circumstances and variations in order to represent an inherent human truth or elementary condition, so that it is meaningful to have a peculiar word to describe it in various contexts? As Chesterton says, “When Mr H. G. Wells says (as he did somewhere) ‘All chairs are quite different’, he utters not merely a mis-statement, but a contradiction in terms. If all chairs were quite different, you could not call them ‘all chairs’.”

  22. GCC

    Hey, all. I’ve been rather busy of late too, and haven’t been able to nail down my varied response(s) here just yet. (Mostly I’m trying for it not to be 5,000 words…though with so much to cover I’m not sure that’ll be possible.) I’m hoping that having some time off over the next several days will give me an opportunity pull things together and get them posted. I’m also hoping that the time off will give us an opportunity to di(tri/multi)alogue on this issue a bit.

  23. Brandon

    Oh man. To blog again.

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