Friday, June 1, 2012

Expanding and Contracting the definition of "Marriage"?

A recent letter to the editor (not by me) entitled by the editor "If gays, lesbians marry, why not relatives?" related the defense given by many, that "two consenting adults [have constitutional rights] to marry whom they love".  The author of the letter took issue with this defense, logically concluding that it could be used as justification for incestuous marriage.  Readers of the letter were not kind, calling this a "slippery slope" and calling the comparison of same-sex marriage with incestuous marriage a "nonsense argument".

My interpretation is that the readers overreacted.  In their rush to defend same-sex marriage, they overlooked the actual thesis of the letter.  The letter took issue with the simplistic defense, not with the actual merits of same-sex marriage.  My efforts to defend the author on these grounds were themselves attacked (with some bringing in the topics of cannibalism and rape), as if I too had stated that same-sex marriage was equivalent to incestuous marriage (or rape or cannibalism).

After a little back and forth, a real debate emerged.  My opponent cited the 14th Amendment to the U.S. Constitution, whose "Equal Protection Clause" reads

[N]or shall any State ... deny to any person within its jurisdiction the equal protection of the laws.

He reasonably simplified this clause as "similarly-situated citizens must be treated the same by the State," and asserted that same-sex couples were similarly situated to opposite-sex couples, and that incestuous couples and polygamous couples are not similarly situated.  His assertion led me to point out that people are most likely to disagree whether same-sex couples are in fact similarly situated.

The disagreement should involve statements regarding the State's fundamental interest in promoting the effects of marriage; for, why would the State erect such a powerful legal framework of inheritance, medical rights, incentives for generating offspring and responsibilities for rearing them, etc.?  Surely not merely to protect the right of two consenting adults to join in a contract.

The most significant and irrefutable difference between same-sex couples and opposite-sex couples has to do with reproduction.  It is a fact that same-sex couples cannot naturally create offspring wholly within the circle of their own inherent biological capabilities.  It requires human intervention from outside the circle, such as through sperm or egg donation, or the use of a surrogate parent.  (It can be argued that many opposite-sex couples must resort to these methods as well, but as a class, opposite-sex couples together have the reproductive capability that same-sex couples do not.)

The question arises: Is reproduction one of the State's fundamental interests in promoting opposite-sex marriage?  If so, is the absence of this ability in part of the population, especially in today's age of advanced reproductive technology and a legal system sympathetic to artificial reproduction, sufficient to declare same-sex couples "not similarly situated" and so deny the right to marry?  Reasonable people will disagree, and hostile debate will not bring the many sides closer to understanding.  This is a matter of philosophy, not of fact.

It would seem that in all other ways, same-sex couples are similarly situated.  They share a desire with opposite-sex couples for a special familial integration, recognized with the full majesty and force of law, of two lives full of income and property, offspring (whether adopted or not), and the power to make joint decisions and be a pre-eminent part of each other's lives.

Civil Unions were introduced to offer this second, more sweeping, legal aspect of marriage, but is argued by many to be inadequate because the institution is "separate but equal" to marriage.  To determine why they are separate, it is necessary to determine what the State's justification is for promoting marriage, as opposed to allowing civil unions.  It is for the people of each State to decide the answer to that question, and the rationale used to answer the question matters, which brings us back to the author of the letter to the editor.

If marriage is justified solely in legal terms, resting especially on the general right of consenting adults to contract with one another as they choose, then it should come as no surprise when any consenting adults wish to enter into any contract with one another as they choose.  It is still reasonable for the State to determine the extent to which such a contract is legal, but the State must justify each limitation, and that may be scientific (as with incestuous relationships), or social-scientific (as with polygamous relationships).

If, however, some justification is couched in philosophical terms (whether in addition to or in lieu of scientific or social-scientific evidence), then the contractual limits may be arbitrary, subject only to the collective will of the electorate.  This is, I believe, where the same-sex marriage debate actually stands.  The will of the electorate of the past is being challenged in legislatures and courthouses by the electorate of today.  Some State legislatures have embraced same-sex marriage (though often at the prompting of the judiciary); others have rejected it, even to the extent of enshrining their opposition with that of the electorate directly into their State constitutions.

The people are speaking.  Some have determined that same-sex couples are similarly situated to opposite-sex couples.  In this respect, I believe that they have contracted the definition of marriage, by eliminating** the possible justifications that the State may have for promoting only opposite-sex marriage.  They have, however, expanded the number of people eligible to be married, and so this is likely the source in popular usage of "expansion of marriage rights".  (**It is possible that new justifications specific to same-sex couples could be added, but I have not observed these.  Equality of same-sex couples seems to be the primary reason, not their superiority; the superiority of opposite-sex couples has been claimed by many opposite-sex marriage proponents.)

Likewise, some have determined that same-sex couples are not similarly situated.  Whether these people have expanded or restored or clarified the definition of marriage is difficult to say, as the definition of marriage comes down to us from so many different paths through history, and is touched by both fact and falsehood.

It would be sufficient, in an ideal sense, that both of these groups of people, both pro and con, have chosen to re-examine their personal justifications for marriage and collectively written new definitions that are acceptable to them in their States.  In truth, perhaps many have undertaken this re-examination with solemn conviction, but likely many others have reacted from lesser motivations, ranging from ignorance to selfish desire.  I lament that so many on opposing sides reduce to hurling insults and epithets, and arguing only on emotional grounds, none of which serves the common interest, and all of which disrespects someone's individual interest.  Once again, the limitations of representative democracy reveal the flaws in our system of government as it has evolved to the present day.

In all cases, oversimplification of the arguments for or against same-sex marriage, especially when enshrined in law, can lead to heretofore absurd or undesired conclusions.  Get educated on the complexity of the arguments, and form studied opinions before rendering them.

1 comment:

  1. The reason to be against same-sex marriage is the same as being against adultery, theft, murder, bestiality, sodomy, etc. God calls homosexual acts sin. The result is the downward spiral described in Romans 1. A nation which tolerates sin may not be blessed. Believers who tolerate sin will lose rewards although not salvation.


Comments are welcome, but must be courteous and thoughtful. I reserve the right to delete comments that do not possess these characteristics.