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.