Our BIG THINKING friend Robert de Neufville is right to notice public opinion trending in favor of same-sex marriage. And so it seems reasonable for him to predict that it will become legal everywhere in our country eventually.
Particularly telling is the absence of opposition to same-sex marriage among the young. The young are, if anything, more opposed to abortion than their parents, and certainly aren’t about, for the most part, the unlimited right to choose against unborn life. I will explain why in another post. In the case of same-sex marriage, the “liberty” issue is disconnected from the “life” issue. When that’s the case, the prevailing opinion seems to be, let people do what they want. The young also are sometimes admirably moved by the imperative of overcoming the history of oppression of gays in our country.
People who remain opposed to same-sex marriage really feel put upon when they’re told that they have no reason for their belief, that they're moved by nothing but unreasonable animosity toward gays. But for most of recorded history, marriage was tied to the biological imperative of reproduction. So the sophisticated Greeks of Athens, who not only accepted but celebrated homosexual sex, thought same-sex marriage was an oxymoron. Socrates (probably not a homosexual) got married and had kids, apparently, because the law commanded it. He did his duty to his country, but he didn’t seem to have much personal fulfillment at home. For sophisticated Greeks, the duty of marriage had little to do with either love or sexual enjoyment. It was about the family and the country (the city). (We could even add here that Walt Whitman, America’s most singular and civic-minded poet, wrote movingly and obviously about homoerotic themes without seeking any public status for being gay.)
Many religiously observant people simply have a different and not unreasonable understanding of marriage than the one that seems to be prevailing today. They connect marriage to a lifelong, sacred personal relationship that involves sexual fidelity and an openness to children. They use judgmental words like chastity and adultery and regard divorce as an evil to be avoided at almost all costs. They think that the institution of marriage is built on the biological difference between men and women, and they join the Darwinians in thinking that the main point of any social animal is to generate replacements and raise them right.
A very strong constitutional argument against the right to same-sex marriage, of course, is that none of the Framers of our Constitution recognized it. Many of our leading Framers knew that the denial of rights to black slaves was contrary to nature, and our Constitution’s compromises on slavery were with an anti-slavery intention. Some of them, at least, were somewhat aware that it was unjust to exclude women from public and business life. But we can comb their writings all we want and fail to come up with any concern with gay rights. That doesn’t mean that Jefferson or Franklin or Paine were full of animosity toward gays.
Not only that, the Framers recognized that the individualism of the national Constitution was limited. Indispensable social institutions were to be encouraged and regulated by the states, and the Bill of Rights, originally, was not meant to apply to state law. They really didn’t think the social institution of marriage could be understood properly as a voluntary contract consented to by any two or more individuals for any purpose they chose. They, for the most part, were all about the individualistic philosophy of John Locke. But one point of the Constitution’s federalism was to keep Lockean principles in a kind of “Locke box,” so that they didn’t end up distorting every feature of human life.
Today, our Supreme Court asserts that the single word “liberty” in the Fourteenth Amendment’s Due Process Clause gives the national Courts jurisdiction over every feature of state and local law. The Court has also said (see Lawrence v. Texas) that our Framers meant to give the word “liberty” no definite, enduring content. It is a weapon to be used by every generation of Americans to achieve progressively more liberty or autonomy. It’s on that basis the Court might say that same-sex marriage didn’t used to be a right, but it’s become one now. We can wonder, of course, why judges are especially well equipped to know when a right becomes a right, or whether the Framers regard “liberty” as a weapon and nothing more.
On this basis, sophisticates have come to regard laws connecting marriage with the natural differences between the sexes as equivalent to laws (segregation) that required the separation of the races. Beginning on Roemer v. Evans, our courts have begun to rely on the dissenting opinion of Justice Harlan as decisive here. “The law regards man as man” or does not distinguish among individuals according to some class-based categorization—such as race, gender, religion, or sexual orientation. And it’s true, after all, that our Constitution of 1787 mentions neither black nor white, man nor woman, Christian nor Jew, gay nor straight. This liberation of individuals from degrading categorization, the argument goes, includes from the natural categories man and woman, as well as any based on the natural or at least unchosen fact of sexual orientation.
One irony here, of course, is the Court, when it comes to race, has never quite acknowledged that Harlan’s dissent is correct. That’s because it would seem to outlaw all race-based distinctions in the law, including, of course, affirmative action aiming at diversity (as opposed to racial justice). But affirmative action based on sexual orientation is not an issue.
The general thought is that idea of marriage between a man and a woman has to be supplanted with the idea of a marriage between autonomous individuals, who are free to choose how to put together their intimate lives. That redefinition fits with the way marriage has been reconfigured, in general, in a Lockean direction over the last few generations. Divorce has been much easier, adultery less stigmatized, and the connection between marriage and children has become progressively more attenuated. We’re more okay than ever with unmarried women having children, and married people not having them.
Having said all this, we might remember that many of the benefits and privileges connected with marriage seem to presuppose child-rearing. Why should two married people without children be allowed places on each other’s insurance? They are both equally individuals. They both are productive beings. Shouldn’t each have his or her own job and his or her own insurance? In our high-tech time, there isn’t enough to do at home to justify anyone having the right to say at home without children.
And, as some gay activists say, by what right does the law seem to privilege marital over non-marital relationships? The Court, after all, seems to say that all intimate choices deserve equal respect. Won’t same-sex marriage result in the increasing stigmatization of gays who choose not to marry? Doesn’t sexual equality demand that government stop the moralizing of affirming marriage—including, by implication, marital sex—as someone more legitimate than other lifestyle choices?
So doesn’t the Lockean logic of our time point in the direction, as Ron Paul and other libertarians say, of concluding that the only way to properly protect individual liberty is for government to get out of the marriage business altogether? There might still be laws that protect and affirm parenthood, but there’s no reason to privilege married over unmarried parents. Those laws, of course, would for the benefit of gays who raise kids too, and they would have nothing to do with who is and who is not gay. Marriage could still remain as a private or religious matter, and the contents of any social contract freely chosen without government interference.
One way to avoid this consistent conclusion, of course, is to retain the thought that marriage laws are to be chosen by the people, and they’re not to be too rigorously subjected to the abstract logic of rights. So it might make all the difference, for the real future of both same-sex marriage and marriage itself, whether same-sex marriage is voted in by legislatures or commanded by a judicial determination of what liberty is these days. For that reason, I’m puzzled by Robert’s indifference to how the change he considers more or less inevitable is made.