The "Yuck Factor"
I've read their briefs and talking points, I've given due consideration to their Holy Scripture. No matter how much attention I give to the same-sex marriage issue, however, there does not seem to be any good argument for the conservative position. This troubles me. I'm a lawyer who specializes in appeals and legal writing. Analyzing and defeating arguments is what I do. I have found it best to try to identify my opponent's strongest arguments. The only way to do this effectively is to pretend to adopt their point of view. In arguments, especially legal arguments, there are so many assumptions and premises which just are not said. To fully evaluate your opponent's argument, you have to "get inside their head": you can't just rely on what they say or what they do.
Yes, I am aware that the persons most loudly proclaiming their outrage for "gay marriage" do it solely for political reasons. But why is this issue so important to their conservative political base? I suspect it's not really important to them, but they just want to identify their opposition with something repulsive. The majority of Americans do not hate homosexuals, and do not think they should be treated unfairly, but they are repulsed by the very idea of gays and lesbians having sex.
By the same token, however, most of us are repulsed by the idea that our parents might have had sex (despite the obvious evidence that they did) and the idea that old, ugly or fat people have sex is probably just as yucky to most people. Nobody, however, is suggesting the Constitution be amended to define marriage as the union of a young, beautiful, muscular man and a young, beautiful, curvaceous woman.
I'm thus left with the deeply unsatisfying task of demolishing really stupid arguments one by one, without being able to concede any dignity or justice to the other side. This tends to make me churlish. I apologize in advance.
Marriage and "Nature"
Marriage is instituted for the nurture of children. By nurture I mean raising children, not merely spawning them. Marriage supports the continuity of civilization, not just the survival of the species. Marriage is a social institution, not an individual privilege: it is about the future of a family, tribe or nation. Marriage ensures the continuity of custom, culture and religion.
The simple biological act of procreation has obviously occurred since time immemorial without laws to encourage or regulate it. Even the biological evils of incest are, in the long run, self-correcting. In civilized society we may wish to ameliorate the burdens of in-breeding by outlawing incest, but otherwise all experiments with breeding human beings (Ancient Sparta, or the eugenics laws in the United States in the early 20th century) have been abject failures.
Humans do not spring forth as a fully-formed adult at birth, however, but rather take at least twelve years to reach anything close to adult stature and cognitive abilities. This would be true in the hypothetical "state of nature", but it is ever-so much more a factor when it comes to civilized society. Civilization carries forward the accumulated wisdom, discoveries and accomplishments of countless past generations. There is so much to learn that one is generally not considered an adult at puberty, when the human body first assumes its adult forms, but rather only an adolescent. It takes many more years before one is considered an "adult" in an industrial nation.
Still, education, in all that civilized society has to offer, has up until recently been a rare privilege indeed. The laws of marriage traditionally have emphasized fertility, in two ways: (1) people married relatively young, and (2) women's education was subordinate to child-bearing. The reasons for this are plain: raw numbers of people enhanced a society's labor force and troop strength in war. With the advent of the industrial revolution, a nation need not be so concerned with producing more solidiers and workers than the tribe on the other side of the mountains. It is no longer a dire necessity to lock women into the role of popping out babies from the onset of puberty until the day they die. To the contrary, the portion of a woman's life spent having and raising children may be a relatively small fraction of her total life span. Thus, it is no longer acceptable to cut off a women's education in her adolescence in favor of marriage, and we have come to terms with the desirability of divorce.
From the above discussion of the material bases for the institution of marriage, it should be clear that the notions of "nature" and "natural" have no use in reasoned consideration of the laws of marriage.
Gays and lesbians can and do raise children. Scientific studies show that children of gay parents tend to have fewer psychological problems than children raised by heterosexual parents. I would theorize that for homosexuals, parenthood is a very deliberate choice requiring a high degree of motivation. Homosexuals living in poverty don't have children: poor heterosexuals do. Homosexuals don't have "unwanted" children, or children by "accident" or become parents before they are "ready". Any policymaker who is truly concerned with the welfare of children would be better advised to address the issues of poverty and unwanted pregnancy, rather than trying to de-legitmize families headed by homosexual couples.
The role of religion and religious belief in the law of marriage
Conservatives say "it's a religious issue", or, "to me, it's a religious issue", or "I believe that marriage can only be between a man and a woman." In the United States, you are free to believe what you will: you may not insist that everyone else believe it.
This is perhaps the tail end of a long battle. It is mostly over: religious conservatives lost. Control over marriage and divorce was wrested from churches a long time ago. Consider:
- The government, not churches, licenses marriages. (This means your church does not have to recognize gay marriage.)
- You can have your marriages "solemnized" (the legal term for a marriage ceremony) by a civil magistrate instead of a priest. (Your church does not have to perform gay marriages).
- You can obtain a divorce fairly easily. (Your church does not set the rules for marriages)
All of these "secular" features of marriage are still strongly opposed by the Roman Catholic Church. Perhaps it is the case that as long as U.S. law reflects the majority Protestant view of marriage, the marriage law is not seen as hostile to, or independent from, religion in the United States. In fact, however, marriage and religion parted ways along time ago in the English-speaking world. It's all the fault of Henry VII of England (father of Henry VIII).
In Europe during the middle ages, marriage was strictly a religious institution. While some marriage contracts were drawn up, to help resolve property issues of very wealthy families, the "legal" issues of marriage were tried and decided in ecclesiastical courts, applying canon law, and appealed through the hierarchy of the Roman Catholic Church.
This changed with the Reformation. Henry VIII, the English monarch, was a staunch Catholic. He published tracts against the theology of Martin Luther, and earned himself the title Defender of the Faith, which his successors carry to this day. Then, however, Henry VIII was unable to get papal approval for his divorce from Catherine of Aragon, notwithstanding the fact he had been forced to marry her when he was only 14 and she had been the wife of his older brother, Arthur, which arguably was prohibited in the Holy Bible, or at least, that is what Henry argued.
The Reformation, broadly speaking, had a number of differences with the Roman Church on the subject of marriage, in addition to Henry VIII's scruple about being married to his brother's wife. Luther opposed celibacy as a requirement for the priesthood. Luther's marriage to the former nun, Katherine von Bora, either was an example of the progress and promise of the Reformation, or was proof of Luther's scandalous depravity, depending on which side you were on. With Luther's example, Protestant nations had a renewed interest in celebrating marriage. On the other hand, Luther's theology cast some doubt on the institution. Rather than recognizing a series of seven (7) sacraments marking the stages on life's way from birth to death, of which marriage was one, Luther insisted that the only "sacraments" were the rituals instituted by Jesus Christ: baptism and communion. To Protestants, then, marriage was not a sacrament, though no one doubted that the marriage had a religious significance. The Bible, however, gave no instructions on how to perform the ritual of marriage.
With the Act of Supremacy in 1534, Henry assumed control over all of the apparatus of the Church of England, including the ecclesiastical court. Thereafter, the English "ecclesiastical" courts retained jurisdiction over marriages (and a variety of sexual misconduct) but were subject to the monarch and the legislature. This was not a big change at first. Divorce was still virtually impossible, Henry's example notwithstanding. Gradually, however, the "ecclesiatical" courts adopted the Protestant view that marriage is a civil contract. Ceremonies performed by civil magistrates were deemed an acceptable substitute for a priestly ritual. Then the state began to determine for itself the grounds upon which a marriage might be dissolved. In England, the "ecclesiastical" courts lost jurisdiction over marriage and divorce in 1857 (they still exist to resolve disputes over Church property). In 1857, ordinary civil courts were vested with jurisdiction to grant a complete divorce and dissolution of marriage. Finally, the state asserted its approval as a necessary component of a valid marriage, in the form of the marriage "license".
The United States of America, lacking an "established" religion by the mandate of the Establishment Clause of the First Amendment, never had ecclesiastical courts. The courts of equity assumed the jurisdiction of an ecclesiastical court. In the Twentieth Century, most states reformed their civil judicial system and combined all their law and equity courts into one civil court. Experience dictated, however, many practical advantages to having a part of the court system specialize in divorce cases, so now almost everywhere there is a separate court or division of the court for "domestic relations".
Today's modern "domestic relations" court retains few vestiges of religious jurisdiction. The "disability of coverture", a religion-based legal subordination of wives to their husbands, has been abolished everywhere. In most places, divorce no longer requires proof of "fault". In most places, the charge of "adultery" in a divorce case was the last vestige of the old English ecclesiatical court's jurisdiction over sexual misconduct.
Symbolic of this secular civil marriage is the opportunity in all states to be married by a judicial officer in a courthouse, rather than a church. Couples can do this to make a statement about their independence from organized religion, or as a compromise when they have disparate religious backgrounds.
The Problem with Majority Rule: Loving v. Virginia
Same-sex marriage is a civil rights issue, identical to the issue of interracial marriages, which was decided in the United States in the case of Loving v. Virginia, 388 US 1 (1967). As such it cannot be left up to state legislatures. The legislative branch is the thrall of the majority. History has shown that unlimited democracy is the root of much injustice and tyranny. To control the majority, we have a Constitution and laws, and an "activist" judiciary to declare when the legislature has gone too far.
In 1967, it was not difficult to get a majority of people --72% in a Southern state like Virginia-- to vote to make marriages between a "white" person and a "colored" person a felony. That's right, a felony. The argument advanced by the trial judge in that case, when he sentenced Mr. Loving and his black wife to a year in prison, was that "Almighty God" had separated the races by placing them on different continents, and did not intend for them to mix.
One would think that such a God would not look favorably on the conquest of America by "white" people, nor the importation of Africans to labor for the "white" people. If "Almighty God" did not want the races to "mix", then the whole enterprise of the United States must incur that God's wrath. However, there is a tradition in America of taking the Old Testament "literally", but only after mentally substituting "White Protestant" for "Jew" wherever that term appears or is implied. Protestants in the South identified with the Jews of the Scripture: they too had taken the land from the natives and now subsisted with the help of slaves. They considered themselves the "chosen people" and America "The Promised Land". This view took a beating when the Second Coming of Christ failed to materialize on schedule, and when slavery was finally outlawed with the 13th Amendment. But it lingered on in notions of "white supremacy" long after the Civil War.
Miscegenation –interracial marriage– was a major theme in the Judeo-Christian Bible, and not just in a few obscure passages in letters by Paul. The Bible prohibits interracial marriages many times, and both literally and figuratively. See Deuteronomy 7:3; Numbers 25:6-8; 1 Kings 11:2; Ezra 9:2; Nehemiah 13:25-27. Symbolically, marriage between Jews and non-Jews represents religious syncretism: the union of Jewish and Gentile religious practices. Clearly this was not the case in the American South: not only had black people been Christianized, but they had been inculcated in the very same sects of Protestantism to which their former owners nominally adhered. Nonetheless, the habit of identifying with the "Chosen People" was too strong to be overcome by such a subtle factual distinction.
These peculiar features of "white supremacy" are abundantly clear from the Virginia statute struck down in the Loving case. The statute defines only two races: "white" and "colored". While white supremacists are called "racists", they really don't have any consciousness of "race". If there were any scientific validity to concerns about race-mixing, the statute would not lump together all non-"white" races as "colored" (like the Bible lumps together all non-Jews as Gentiles). In fact, though, Virginia was not concerned about "race", only about "whites" marrying non-whites. The very definitions of the act expose it as an attempt to maintain "white" supremacy, not to prevent any biological or pseudo-biological harm which might result from miscegenation.
In 1942, in striking down an Oklahoma eugenics statute which mandated the sterilization of certain kinds of criminals, Supreme Court Justice William O. Douglas stated:
We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.
Skinner v. Oklahoma,316 U.S. 535, 541 (1942).
While I am sure that Justice Douglas meant "human race" in this passage, the same sort of rhetoric was used by white supremacists to talk about the survival of the "white race". It was, in any event, a highly controversial matter.
Laws making interracial marriage a crime were one of the last badges of slavery to go, lasting right up to 1967 and the case of Loving v. Virginia. This is well after the Supreme Court had ruled that "separate but equal" education is unconstitutional (1955), and after sweeping civil rights legislation in mid-1960's prohibiting race discrimination in public accomodations, housing, or employment.
Justice Warren's opinion in Loving v. Virgina, speaking for a unanimous Supreme Court, exposed this white supremacist reasoning and concluded that there was no legitimate government reason to uphold the law criminalizing interracial marriage.
Polygamy and other evils on the "slippery slope".
It is easier to justify marriage regulations when they apply across the board, to everyone, and address some sort of concrete harm. It is possible to articulate such justifications to ban incest, which presents a risk of inbreeding and children with birth defects and disabilities which will be a burden to society. Similarly, one can justify age restrictions: marriages are thought to have a better chance of success if both parties are adults, have completed at least some rudimentary education, before taking on the burdens of being parents.
Somewhere in between, there is the issue of polygamy. (Scientifically and by etymology the term is gender-neutral: the word means "many marriages" in Greek. All the cases in law, however, seem to involve a a single husband with multiple wives: "polygyny" to be precise.) Everywhere, the issue is whether a single man can support multiple wives and multiple families, but different cultures deal with the problem in different ways. In Islam, polygamy is not banned, but marrying more wives than you can support is strongly discouraged. Christian nations simply ban the practice.
During the 19th Century, some radical Christian sects took their identification with the Jews of the Old Testament to an extreme. Among these were the Latter-Day Saints, who believed that if polygamy was acceptable for the Jewish Patriarchs, it ought to be acceptable for their patriarchs as well. Oddly, this progressive view did not make the Saints admired by their neighbors, and they were forced to flee to a remote patch of wilderness called Utah. When the federal Congress was considering admitting Utah to the Union as another State, it insisted that Utah Territory make polygamy illegal, despite the religious views of the inhabitants. One of those inhabitants challenged the law, pointing to the Free Exercise clause of the First Amendment to the federal Constitution.
The result was the Supreme Court's decision in Reynolds v. United States, 98 US 145 (1878). In discussing the defendant's First Amendment defense, the Court opined that a social structure founded on polygamy would be inimical to a democratic civil society, and thus had political ramifications which the State would ignore at its peril:
[P]olygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. [citations omitted] An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.
There was, nonetheless, a constitutional restriction: Congress could pass no law restricting the free exercise of religion. Thus, the Court resorts to (1) an empty formalism, distinguishing action from religious belief (what happened to "exercise of religion"?) and (2) indulging in slippery slope rhetoric:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
This nugget of Nineteenth Century "formalism" would now probably be long forgotten but for its recent resurrection by Justice Antonin Scalia, in the case of Employment Division v. Smith. In its modern form, the reasoning goes like this: if the government is justified in criminalizing some conduct for everyone (that is, if the law is one of general application, neutral on its face toward religion) then there exists no "religion" defense for anyone.
Up until recently, this was the strongest legal argument against same-sex marriage: since the government was justified in criminalizing gay sex as "sodomy" (Bowers v. Hardwick) the government was ipso facto justified in refusing to solemnize such conduct in a marriage. It was never a great argument (to wit: prostitution is a crime, but that would not justify making heterosexual marriage illegal.) Now it is completely untenable, since Bowers has been overruled. See Lawrence v. Texas.
If the issue of same-sex marriage is forced into the halls of the Supreme Court, the specious reasoning used to justify discrimination will most likely be received just like the white supremacists arguments in the Loving. Again, though, note well the year of the Loving decision. By 1967, the major battles of the civil rights movement were over. The Supreme Court can and will put off deciding the "gay marriage" issue until there exists some sort of national consensus on the matter. This is what democratic candidates mean when they say the decision should be left "to the States": a gradual process whereby some States will make the change all at once, some will reach a compromise, and others have to be dragged kicking and screaming by "activist" judges into the 21st Century. When that process is concluded, and only then, the Supreme Court can announce simply, clearly and unanimously, as it did in Loving, that the tryanny and prejudices of a frightened mob do not justify discrimination against a disfavored minority.
Or, I should say, more or less unanimously. Unlike the Warren Court, today's court bears the burden of politics. Justices Scalia and Thomas can find reasons to support even the most inane conservative positions.