Gay marriage - no longer banned in Boston

I might as well say right up front that I'm a proponent of same-sex marriage, so as hundreds of gay couples queue up in Massachusetts to tie the knot, I for one, am wishing them well.

If you are a social conservative, the mere idea of using the word "marriage" to denote a same-sex union is an affront to your long-held beliefs regarding the role and sanctity of marriage. I will attempt to address those arguments, but not with the hope of changing any minds. After all, this issue has been endlessly debated pro and con by many who are more impassioned, persuasive, informed and articulate than I could be. But since this is without a doubt the topic of the day, I might as well make my own position clear.

First of all, I am a proponent of marriage, period. I have been married for nearly 25 years and think marriage is a wonderful institution. I have always thought so, even as it has been under fire for the past several decades in so-called "progressive" circles.

There are certainly historical aspects of marriage that are problematic, not the least of which is the notion that the woman is essentially a type of "property", ownership of and control over which can and should transferred from her father to a different man. This is reflected in the classic wedding vow "love, honor and obey" for the woman, which is not stipulated for the man. Even at present, it is assumed that the woman will take her husband's last name, as a symbol of unity rather than keeping her own birth name (her "maiden" name, in actuality her father's last name). The vast majority of couples see nothing wrong with this practice, viewing it as a part of an ongoing tradition and not in need of "fixing".

Another dimension of marriage is the need to establish paternity and fix responsibility for the raising of children. Once a couple is joined, patrimony and inheritance rights can be clearly established, estates can be handed down, and continuity established between generations. All of this is usually patriarchal, but there are a few examples of matriarchal (or at least matrilineal) societies with forms of marriage.

Although the roots of marriage are religious as well as civil, I don't think a successful marriage has to be grounded in religious beliefs and practices, but if it works for the couple that's a bonus, since it shows a commitment to shared religious values which will hopefully serve to strengthen the marriage. And religion adds another factor: one of the societal functions of a public church wedding is that the couple announces their commitment to one another in the sight of the community and before God. This is intended to drive home the seriousness of what is supposed to be a lifelong commitment. But even without getting God involved, there are ample reasons for societies to support marriage as an institution.

We know all this. We also know that 50% of all marriages in the US fail, which has caused some to question the value of the institution of marriage as a whole. A small portion of the population feels on principle that it's not necessary to have a "piece of paper" to demonstrate love and commitment. We have examples of the common-law marriages of celebrity couples like Tim Robbins and Susan Sarandon, and many of us know couples who have maintained that lifelong commitment without getting married -- opposite-sex couples can choose to do this, same-sex couples have had no choice in the matter.

So if marriage as an institution is grounded in all these outmoded concepts of the woman-as-property, and if marriages fail at an alarming rate, and if I acknowledge that marriage is not the only way a couple can affirm their commitment, why do I think it's so important? Because I believe it's in society's interest to encourage its citizens to form lasting, stable relationships. It's good for children and good for communities for individuals to have a commitment to something larger than themselves -- "a nation of two" as Kurt Vonnegut put it in his novel, Mother Night.

Different societies have come up with varying definitions of social arrangements they wish to reinforce. The most well-known example is the polygamous marriages which were common among Mormons in 19th century Utah, and which were outlawed as a condition of it joining the Union. Another example is Islamic law, which traditionally permits (but does not encourage) a man to to marry up to four women if he can "deal justly with them", historically as a means for ensuring the care of orphans in populations where women outnumbered men. Polygamy was also commonplace in biblical times, the most famous examples being the patriarchs Abraham, Isaac and Jacob.

And to use one more example closer to home, here in the United States laws vary regarding marriage between cousins. In some states, first cousins are allowed to marry, though the standard in the majority of states sets the bar at second cousins. In Canada, Mexico and throughout Europe, there is no restriction on first cousins marrying.

I mention all this only to make the point that marriage can take many different forms, depending on the time and place. In Western civilization, it has always meant one man and one woman, uniting to start a family. For most of the history of the US it meant people of the same race or religious tradition, enforced by Jim Crow laws against "miscegenation" in the first case and the threat of ostracism or excommunication from the religious community in the second. Thankfully, as we have evolved as a society, our definition of marriage has broadened to become more inclusive.

Today we are at another one of those junctures, where we are redrawing the boundaries of what defines a marriage. At present, the majority of the US population opposes this admittedly radical redefinition of marriage, though it is split about evenly on civil unions which would have some of rights of marriage. But marriage laws in the US are governed by the states, and so we now have one state out of 50 which has decided it will sanction same-sex marriages.

Gays and other proponents of same-sex marriage frame this as a civil rights issue, comparable to the striking down of the old laws banning interracial marriage. Social conservatives, and for that matter many leaders in the African-American community, object to this narrative. And for people whose religious faith is core to their lives, this change is tantamount to revising marriage laws to allow brothers to marry sisters.

Arguments against same-sex marriage fall into four categories: religious, societal, judicial and semantic. Let's take them in that order.

Religious: The three major monotheistic faiths have always been problematic for gay people. Both the Hebrew Bible and New Testament, as well as the Qur'an have passages that condemn homosexuality as sinful. The key passages are laws in Leviticus and the Sodom/Gomorrah stories in Genesis, as well as writings of St. Paul. The Qu'ran treats homosexuality as a moral failing and gays face severe persecution in the Islamic world.

However, partisan hyperbole aside, the US is not a theocracy. The Bible condemns many types of behavior, but we do not enshrine these injunctions as law. Even though our laws are rooted in Judeo-Christian tradition and concepts (e.g. the Ten Commandments), they are by nature secular and the US Constitution prohibits the establishment of a "state religion". Therefore, the State is not in a position to cite religious tradition as a reason for denying civil marriage licenses to same-sex couples. Conversely, the State has no basis to insist that religious organizations perform same-sex marriage ceremonies, in direct contravention of their own moral and religious principles. The wall of separation between church and state remains.

Societal: Every society makes decisions, conscious or unconscious, about practices and values that are believed to be beneficial. Most societies want to perpetuate themselves, maintain some level of continuity with the past and tradition, and provide some means for economic or social progress. Marriage is an institution that reinforces all three of these goals. One argument in favor of limiting marriage to opposite genders is that it benefits society because such unions are more likely to result in children, and in hopefully stable households in which to raise them. Hence, the argument runs, same-sex marriages, which are biologically incapable of producing children other than through medical intervention or adoption, while potentially meaningful to the individuals involved, are not inherently valuable to society and therefore society has no interest in sanctioning them. Jeff Jacoby makes this argument in the Boston Globe the day before Massachusetts began issuing marriage licenses to same-sex couples:

Those of us who think this week's revolution is a terrible mistake need to do a much better job of explaining that the core question is not "Why shouldn't any couple in love be able to marry?" but something more essential: "What is marriage for?" We need to convey that the fundamental purpose of marriage is to unite men and women so that any children they may create or adopt will have a mom and a dad.

Marriage expresses a public judgment that every child deserves a mom and a dad. Same-sex marriage, by contrast, says that the sexual and emotional desires of adults count for more than the needs of children. Which message do we want the next generation to receive?

But on the basis of this argument, only marriages between fertile opposite-sex couples who are intent on raising children should be permitted. And yet, the State issues marriage licenses to childless couples, elderly couples and those who have no intention of having or adopting children. So clearly the State sees an intrinsinc value merely in two individuals coming together as a married couple, children or no. So there is no reason to deny this same benefit to same-sex couples.

Opponents of same-sex marriage see this trend as part of an ongoing deterioration in the fragile state of marriage, with an adverse impact on society as a whole. If same-sex couples are to be treated as the equivalent of opposite-sex couples, the argument runs, why stop there? Why not sanction marriages among three partners who love one another? Or marriages between brothers and sisters if the couples are unable to produce children? Or two brothers or two sisters, since there is no danger of birth defects? This "slippery slope" argument raises an interesting challenge, as it asks those of us who think that sexual orientation should not be a dividing line to explain why we would draw the line against other types of relationships that might be also considered taboo.

The answer to this is, in my view, simple: this is where we choose to draw the line. As observed earlier, some societies and traditions sanctioned polygamy, others have not. Some societies, such as in Polynesia, sanctioned group marriages. Our own society used to draw the line at race or religion, but no longer does. Now sexual orientation is the new disputed frontier and the line is being redrawn again. Belgium and the Netherlands allow same-sex marriage, and momentum is building in Canada, with an anticipated ruling by July 2004. The US may indeed go down that path as well. Our reasons for drawing the line in a certain place may be based on science, religious belief, our notions of morality, or merely a gut feeling. Jonah Goldberg, in a spot-on essay on this topic in National Review, makes the case that as societies break taboos (such as striking down state sodomy laws), "normalcy" becomes redefined. He also observes that the desire among gays to marry is actually a conservative impulse:

What conservatives don't understand is that Rousseau was right: Censorship is useful for sustaining morality but useless for restoring it. Once the taboos against homosexuality were broken — and in elite culture those taboos are in shards — sodomy laws were doomed. And, in my opinion, so is the prohibition against same-sex marriage unless conservatives update their arguments to the point of accepting that homosexuals are here to stay.

While I am still opposed to gay marriage (I favor a compromise of civil unions of one kind or another), I don't really buy the argument that same-sex marriage would destroy the institution of marriage or notions of normalcy altogether. And even if you do buy that argument, you have to concede that those making the best arguments for gay marriage certainly do not have that intent. In fact, they want marriage to do for gay men what they think marriage does for straight ones. The reason some lefty "queer theorists" don't like the idea gay marriage is instructive: They don't like the idea of being "trapped" by a heterosexual institution. For example, it might just be that much easier to condemn homosexual promiscuity if it is actually adultery too.

Judicial: Conservatives often point to Roe vs. Wade as an example of how not to resolve a divisive social issue. A strong debate was under way across the country, with some states allowing legal abortion and others prohibiting it, when the Supreme Court handed down the decision that women had a legal right to abortion under the Constitution. Regardless of the merits of the ruling, this had the effect of short circuiting the debate, as the pro-choice side was handed a victory and abortion was enshrined in the law of the land. The Right views the Roe decision as egregious "judicial activism" or "legislating from the bench", which took away the ability of people to debate and ultimately vote on what is for pro-lifers a profound moral issue.

And they fear that the Massachusetts Supreme Court has just done the same thing for gay marriage. Rather than the people of the state deciding via legislative action or referenda, the court has decided it for them by interpreting the state constitution as sanctioning same-sex marriage. Now, if the people of Massachusetts choose to disagree with that interpretation, they must do so by amending the state constitution; and the earliest opportunity for that will be in 2006. In the meantime, all same-sex marriages performed in the state will be lawful under the Massachusetts constitution. And other states will be confronted with legal challenges over recognizing lawful gay marriages performed in Massachusetts under the full faith and credit clause of the Constitution.

In my view, the judicial argument carries a lot of weight. Ideally, it would be better if the citizens of each state could propose legislative changes, hold reasoned debates, and pass laws defining the meaning of marriage. But the function of the courts under the Constitution is to interpret the law, and often that interpretation ends up creating problems for one group or another. For example, recall that in the 2000 election when the Supreme Court ruled 5-4 in favor of Bush in Bush v. Gore, Democrats screamed "judicial activism". But nonetheless, a decision had to be made and one side or the other was going to be unhappy no matter what.

Nor do these decisions have a minor effect. Most would agree that that 5-4 decision in Bush v. Gore had a profound impact on the country and its leadership in the world. Liberals were forced to wait four years for an attempt to "correct" that decision through the democratic process, just as conservatives will be forced to work through a legislative process to counter the effects of the Massachusetts ruling. With local governments in San Francisco, New York and Oregon getting into the act and issuing same-sex marriage licenses as an act of civil disobedience, it is not surprising that conservatives responded by proposing to write the traditional definition of marriage into the US Constitution itself, a move opposed by some conservatives on the ground that it's dangerous to tinker in this way with the Constitution.

While gays across the country are most likely hoping for a Supreme Court ruling that does for same-sex marriage what the Roe decision did for abortion rights, it might be better for the country to have the debate this time, state-by-state. It will be messier, no doubt, giving rise to a patchwork of conflicting marriage laws, which would have to be sorted out. But over time, I expect two things would happen: first, the country would have a chance to judge the impact of gay marriage in those states where it is implemented. That is, after all, the whole idea behind federalism -- the states are intended to be laboratories, where we incubate new ideas, laws and social change. Secondly, the population would age, with the youth of today stepping into leadership roles and determining social norms. And to people 24 and under, being gay is no big deal and gay marriage is not the hot-button issue that it is for the older generations. Given time to work itself out through court challenges, legislation, and even constitutional maneuvers, we will reach a new consensus on this issue.

Semantic: The final argument can be summed up as: "Can we just not call it marriage?" People in this camp feel it's discriminatory to deny gay people the benefits of civil marriage, but at the same time draw the line at redefining the entire institution of marriage. They would oppose "gay marriage" in name, but not in concept, preferring to create legislation to support civil unions. This is a politically expedient position, one taken by Democrats from Bill Clinton to the late Senator Paul Wellstone to Howard Dean to John Kerry. It says, in effect, that "marriage" per se is by definition a heterosexual institution, but that certainly gay people are entitled to something that provides comparable status. Call it "separate but equal".

And calling it that should tell you everything you need to know about why gay people will not, and should not settle for it.

So we are at the beginning of a long, drawn-out process. Having gay friends and relatives, I hope that what is happening in Massachusetts spreads throughout the country, so that they may enjoy the benefits of marriage that I do. I hope that following a decade of debate and social evolution, we look back and wonder why in the world it seemed like such a big deal at the time.

To cap the day, one more note, a class act worthy of mention: James Taranto writes the column Best of the Web for the Wall St. Journal's OpinionJournal. The May 17 column included an item that poked fun at John Kerry's calculated response to a question as to whether he wished the newly-married couples well: "I obviously wish everyone happiness. I want everyone to feel fulfilled and happy in their lives. The way to do that is by respecting every citizen's rights under the Constitution." Taranto commented: "When most people go to a wedding, they congratulate the groom and offer the bride best wishes. Does Kerry really say instead, "I respect your rights under the Constitution"? Then he went on to say the only proper thing under the circumstances:

This column does not support same-sex marriage, and we vigorously oppose its establishment through judicial fiat. But disagreements over policy and procedure are no reason to be inhuman. Congratulations and best wishes to all the couples getting Massachusetts marriage licenses today.

Exactly right. There's a long battle ahead and what I hope will be a society-transforming debate on this matter. But in the meantime -- congratulations and best wishes.