David Cloutier’s post on the legalization of civil marriage for same sex couples rightly raises the question of whether opposition to civil marriage for same sex couples can be grounded by reasons that are both intelligible and accessible to people who do not share Christian theological beliefs. The paucity of such arguments in the public square, and my own experience (similar to Cloutier’s) of university students finding themselves unable to substantiate their resistance to same sex marriage, could well indicate that such resistance is founded only on a bias against same sex couples, a bias that needs to be unlearned. How to determine if that is the case?
Most people look at ways that same sex couples are similar to heterosexual couples, and conclude that there is no basis to differentiate these two sets. I would argue that this approaches the question backwards. Since we are dealing with civil marriage, we first need to examine why the state is involved in marriage in the first place. There is a state purpose driving marriage laws in the U.S. Then there are proxies (addressed below) employed to determine what occasions serve that purpose. If either the purpose or the proxy is unintelligible or non-constitutional, marriage law should change.
What is the state purpose in recognizing marriages? A read of the groundbreaking 2003 Goodridge v. Massachusetts case in the State Supreme Court legalizing same sex marriage reveals that Chief Justice Marshall (majority opinion author) and Justice Cordy (one dissenting opinion author) address exactly this question. Surely the state has an interest in guarding certain relationships between persons and the orderly transfer of property. This is why, for instance, certain contracts are registered with the state, or why titles of homes are so registered. Yet what is the state reason for recognizing marriage in a manner that extends beyond these contractual matters? According to Marshall (pro-same sex marriage):
“Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported wherever possible from private rather than public funds, and tracks important epidemiological and demographic data.”
The state purpose in marriage is to “encourage stable relationships.” There are several further goals noted that are achieved by such stability. If this is the state purpose in marriage, it is difficult to see why the two people involved must be a man and a woman. This is exactly what Marshall concludes. She claims arguments that reference procreation, for instance, identify the one thing that differentiates same sex from opposite sex couples and makes it the qualification (or proxy) for marriage.
Justice Cordy, on the hand, claims that procreation is precisely why the state has for so long recognized relationships between men and women (and, for instance, prohibited close relatives from marriage):
“Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized.”
Cordy recognizes other important functions of civil marriage (aiding orderly property transfer, e.g.), but claims that the primary reason the state is involved in marriage in the first place is to encourage the having of children and facilitating their raising. There are many relationships that the state has no interest in recognizing, but which are crucial to a flourishing human life. One immediately thinks of friendships, for which no license is obtained. Yet promoting or recognizing close relationships is not a legitimate state purpose. The same is not true with procreation. Cordy continues:
“It is difficult to imagine a state purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children.”
If this is indeed the state purpose in marriage (and if it is a legitimate one), then who can marry? The “proxy” (or qualification, or “stand in” to indicate that state purpose) is that the couple be male and female. (It should be noted that though this involves reference to gender, this proxy need only meet the rational basis test to achieve that state purpose – not strict scrutiny – since men and women are not treated differently as two classes.)
The problem with the Marshall position is not that it is not a conceivable state purpose (encouraging stable relationships). It is that it is not the state purpose in recognizing marriage. If the state wants to encourage stable relationships, presumably it could provide an apparatus to do so. But then the proxy should have a rational basis given that purpose. Why couldn’t relatives avail themselves of that purpose? Why couldn’t more than two people so avail themselves? These are not alarmist questions. They attempt to hold the Marshall statement of state interest to its own terms.
Of course the proxy for the state purpose of marriage as articulated by Cordy (even if accurate) is not without problems. What of couples who have no intention to have kids? We could of course ask people to sign a license saying they have such an intent when they apply for a license. The resistance you likely feel now as to that proxy is exactly why it is not law. Alternatively, if marriage law is really about kids, why not wait to recognize marriages until kids appear (by concourse, adoption, or other methods)? This is actually a reasonable suggestion. Indeed the state does get involved once a child is had outside of marriage through guardianship, and many states have second guardian provisions. But Cordy rightly claims the state purpose in marriage is not only ensuring but “promoting” the having of children. As citizens of countries with negative population growth know well, there is indeed a legitimate civil purpose in encouraging the having of children. Recognizing opposite sex marriage before children does this.
Surely responses will raise more questions about sterile couples, reproductive technologies, and adoption. These can be addressed as well. It must be acknowledged that the proxy of man / woman marriage is not a perfect one toward achieving the state purpose. It may however be the best available without excessive state intrusion.
In sum, IF civil marriage has been about encouraging the having of kids and helping to protect their raising, the male / female proxy is indeed reasonable. The state can adopt another purpose (e.g., Marshall’s) but then it would no longer be marriage. The state could even decide to “get out” of the marriage business altogether. But it is argued here that: a) the purpose of civil marriage is as Cordy claims; b) this is a legitimate purpose; and, c) the reasonable proxy for this purpose is male / female. Note none of these claims demands resistance to state recognition of other unions, so long as the state purpose is clear, legitimate, and executed with a reasonable proxy.
I wonder who is competent to answer the question posed—What is the state purpose in recognizing marriages? Or is it even a question with meaning? Is there some platonic ideal of “the state” which we can observe to determine its purpose? Or must we look at what stated do and generalize? There is no civil marriage in contemporary Israel, although the government recognizes marriages performed by certain authorities in Israel, and it also recognizes marriages performed abroad (including same-sex marriages). Is Israel not in conformity with the definition of a state? When speaking of “the state” and its purposes in recognizing marriage, do we exclude as states the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, and Argentina. Do we somehow separate the notion of the state and the legitimate government of the state? If the legitimate government of a state, by the legitimate processes in which the state makes similar decisions, legalizes same-sex marrage, has the legitimate government not made a statement about what that particular state considers to be the purpose of marriage. In the ten nations that I mentioned above, which all have legal same-sex marriage, are same-sex couples who follow the processes outlined by their particular state to be married not actually legally married when the state says they are?
We could of course ask people to sign a license saying they have such an intent when they apply for a license. The resistance you likely feel now as to that proxy is exactly why it is not law.
Undoubtedly the vast majority of people would indeed object to requiring couples seeking a marriage license to, say, sign an affidavit swearing they were open to having children. I think it is interesting to ask why. After all, I believe it is the position of the Catholic Church that an attempt should be made to bring civil marriage as much as possible into conformity with “real” marriage. And one of the Catholic requirements for a valid marriage is openness to having children. But I think for civil marriage in the United States, there is a strong feeling that it is absolutely none of the state’s business whether married couples intend to have children or not. This raises in my mind the question of whether or not the state really does regard, as the primary purpose of marriage, the encouragement of procreation and the provision of a suitable circumstance for child rearing.
In order to see how “the state” regards marriage, I think we also have to look at a number of other things. For example, if the state is intent on encouraging procreation, why does it actively promote contraception (Title X, enacted in 1970) and permit abortion on demand (since 1972)? If marriage is to provide and promote good circumstances in which to raise children, why did no-fault divorce (first signed into law by Ronald Reagan in 1969 in California) over the years become adopted in all of the 50 states? And of course in the face of an ever-growing percentage of out-of-wedlock births—currently 41% for the population as a whole, over 50% for women under 30, and over 70% for African-American women—the question arises as to whether, if marriage is indeed recognized by the state for procreation and child rearing, are the state’s intentions being fulfilled? If the state’s intention is to encourage procreation and provide an environment for child rearing, as marriage in reality is rapidly declining, how seriously can the state be taken if there is no action to discourage out-of-wedlock births, divorce, and all the other forces working against marriage as the approved vehicle for procreation and child rearing?
Whatever high-minded theories there may be about the purposes for heterosexual marriage, its increasing failure to be what the state allegedly intends it to be, and the state’s inaction in the face of that failure, at minimum raises questions of priorities in the vast amount of debate and the vast amount of resources being used to oppose same-sex marriage. After all, 30 states have now legally banned same-sex marriage to “protect” heterosexual marriage, but what have these 30 states done to actually strengthen heterosexual marriage?
Although I have significant doubts, there may be compelling arguments, based on the definition and purpose of marriage, to oppose same-sex marriage. But I think for the moment, the younger people arguing in favor of it based on fairness and equality have the better arguments, which leads me to believe that the majority who oppose same-sex marriage are either intuiting a correct position they cannot put into words, or else are opposing same-sex marriage out of prejudice against gay people.
William: well said! this is what I was trying to say in a much clunkier way in my reply to David Cloutier.
I think you and David Nickol put your finger on it–people need to be clear on what they are asking the state to recognize, and opponents of same sex marriage need to understand that, for the reasons Nickol outlines, the argument that “SSM will hurt marriage” is ridiculous at this point because marriage has all but bled to death already.
I think the unarticulated sentiment of many opponents of gay marriage when they say “SSM will hurt marriage” is that acceptance of SSM indicates something like acceptance of marriage as primarily a sort of friendship and also of all of the conditions Nickol mentions. It’s frustrating that they don’t see all of these other conditions as already having changed marriage radically, and they seem to think that acceptance of SSM is more of a cause than a symptom of the “decline of marriage.”
Bill,
Thanks for this invitation to think more seriously about why the state is in the marriage business. I agree that people from both sides ought to engage this question more seriously. Your argument, as I understand it, is that the state regulates marriage because it cares about child rearing, and that its limitation of marriage to heterosexual couples is a proxy by which it indicates its valuing of children.
It’s an intriguing argument but I’m not sure that it works. I would say that the state regulates marriage for at least two reasons: (1) Because we want to encourage people in companionate relationships to hold true to their promises of fidelity. With a legal contract, we publicly validate their personal and/or religious covenant because marriage contributes to social stability and human flourishing. (2) Because we care about children. Two-parent marriages tend to have the most success with child rearing, so we encourage them. I would argue that both of these reasons have a long history and contemporary validity.
Still, as you note, we make exceptions for couples who are incapable of procreating, because it would be messy if we didn’t. But using that logic, why not extend the exception to gay and lesbian couples who have or want children? Wouldn’t they be more capable of fulfilling the purposes of marriage as defined by the state than, say, a heterosexual pair of senior citizens? Why isn’t excluding them a form of discrimination?
It seems to me that you have to go to complementarity to make a convincing case on legal (as well as) Christian marriage. What do you think?
Thanks for the responses, and apologies for my holiday weekend hiatus!
Two points. First, as to whether or not the original post offers some “platonic form” or static notion of “the state.” David Nickol is right that it certainly could be read like that, and it was not my intention that is be so read. Perhaps “legitimate political authority” (LPA) would be a helpful substitute. It seems there are varying ways that LPA could handle marriage – ways that are legitimate because they pursue legitimate state interests in fair manners. Israel is cited as an example of a state that does recognize marriages but does not itself deputize agents who initiate civil marriage. One could easily imagine some LPA determining that the state has no significant interest in recoignizing mariage at all, presumably leaving to other societal mechanisms (via subsidiarity) to promote the goods of civil marriage. In other words, there are a variety of ways LPA could be legitimately instantiated with regard to civil marriage. (Other obvious examples are different minimum age requirements or different required levels of familial relation.)
There could also be some ways that LPA could be illegitimately instantiated. US laws prohibiting interracial marriage are commonly (and rightly) cited here. So Nickols is right to wonder if anything statutized by an LPA is therefore legitimate. Abolsutely not. That is of course the debate over SSM. Is legalization one of these occasions, where the state either abdicates a legitimate interest in not promoting heterosexual marriage and / or unfairly instantiates a distinct state interest of promoting stable relationships by limiting such an institution to romantically involved couples? My post tries to argue both of the latter to be the case. If the ten nations Nickols cites are promoting legitimate interests with fair proxies, those simply need to be spelled out. I actually think they can be. But then the interest is no longer that of marriage, and the proxy employed (ironically) is too restrictive.
That leads to the second point. Rubio claims that the state interest in marriage is to “encourage people in companionate relationships to hold true to their promises of fidelity.” This seems to me to be exactly accurate as to what is happening when SSM is legalized. My question is, why is that a legitimate interest of LPA? And if it is, why is it limited to romantically involved couples? (Romantically involved is my stand in term for exclusive relationships that are intimate in ways family relationships and friendships are not – is this what role Rubio’s “companionate” serves?).