The Dilemma of Same-Sex Marriage
David Orgon Coolidge
Marriage goes on trial in Hawaii this summer. More than thirty
states have introduced bills to limit marriage to male-female
couples. Congress is deliberating over a Defense of Marriage Act.
The Supreme Court may have concluded that traditional sexual
morality is "irrational," "animus-based," and unconstitutional.
The debate about same-sex marriage has exploded across the
American cultural and political landscape and is only likely to
intensify.
Americans already are being inundated with competing rhetorics of
family values versus civil rights, and with contrasting images of
"traditional" families compared with same-sex "wedding"
ceremonies. As the issue becomes packaged and repackaged in
competing clusters of sound bites, the deeper questions may easily
become overlooked.
There are many superficial cultural and legal questions that tend
to occupy our attention. The latest studies investigate the lives
of gay couples, the reported happiness of married couples, and
recent attitudes toward adultery. TV and radio talk-show hosts
hold debates on whether our current definition of marriage is
discriminatory and whether homosexuals have a legal right to
marry.
Yet underneath these questions lie much deeper ones, questions
that some Americans have become quite unable to discuss-and which
other Americans are quite eager to avoid: "What is marriage?" and
"How do we make marriage laws if we don't agree about what
marriage is?"
What Is Marriage?
America today is embroiled in a conflict surrounding different
definitions or models of marriage. The failure to identify this
may account for how people talk past each other, not realizing
their fundamental disagreements.
The first model, often described as traditional, I will call the
Complementarity model. The focus of this model is <institutional>:
it views marriage as a sexual <community>, in which the
<procreation> and nurture of children are the defining purpose of
marriage. This view assumes:
we live in a universe with intrinsic purpose and order;
human beings come in two sexes, male and female, who are ordered
both to one another and to the creation of families;
marriage is the fundamental social institution by which men and
women unite their lives, establish families, and connect human
communities across the generations;
although marriage is created by neither church nor state, it may
be blessed by one and recognized by the other;
as a matter of justice, the <moral> right to marry, establish a
family, and educate one's children, should be embodied in positive
<legal> rights.
The marriage laws of all fifty U.S. states are based on this
model. Similar assumptions can be found in other legal systems,
even those that recognize some form of "domestic partnerships."
The second model of marriage, properly called liberal, I call the
Choice model. It appears to be a unique creation of Western
modernity. The focus of this model is <individual>: It views
marriage as a sexual <contract>, in which <pleasure> or
fulfillment is the defining purpose of marriage. It assumes:
we live in a universe that individuals can define and control,
in order to pursue their personal happiness; human beings have
bodies, which provide them with options of pleasure, intimacy, and
reproduction; marriage is a social institution historically linked
to the domination of women by men, through procreation and the
unequal distribution of personal and property rights; while
religions may privately adopt their own definitions of marriage,
the modern state should now treat it as a contract between
autonomous individuals, in which the sex of the individual is
legally irrelevant;
as a matter of justice, the <moral> right to marry has to do
with the equal rights of individuals to participate in state-
defined benefits, rather than with family or children, and this
view should be embodied in positive <legal> rights. These
assumptions are at the core of much of the Supreme Court's
contemporary privacy and liberty jurisprudence, which increasingly
attaches rights to free-floating individuals disconnected from
their social context. We are also witnessing the emergence of a
third, postmodern model of marriage. I call this the Commitment
model, because it emphasizes "committed," intimate relationships.
The focus of this model is <interpersonal>: It views marriage as
sexual <companionship>, in which <partnership> is the defining
purpose of marriage. It appears to assume the following:
we live in a universe that is socially constructed; human
identity, including sexual identity, is socially constructed;
marriage is the central institution in our society, which honors
and encourages intimate and enduring commitments, and confers
religious, cultural, and legal benefits; marriage is more than a
contract between individuals, it is a tradition linking persons
and the wider community;
- as a matter of justice, the <moral> right to marry, which is
based on the right to participate fully in the community, should
be available to all regardless of sex, and embodied in positive
<legal> rights. What can we learn from identifying these three
models of marriage? Something crucial: <each> model involves a
combination of philosophical, moral, and legal assumptions, which
reflect fundamental beliefs about the nature of the universe. We
cannot somehow lay aside our beliefs in order to arrive at a
pragmatic answer to the question of how to define marriage. Thus,
any practical resolution of the same-sex marriage question will
reflect one of these views-whatever it is. The views themselves
are not the business of government, but they will inevitably shape
the opinions of those who write the laws.
How Are We to Make Laws?
Our brief survey of these models suggests there is little
likelihood of reconciliation among them. And, since these three
models only make sense within an integrated set of beliefs, there
are, accordingly, traditional, liberal, and postmodern approaches
to the making of marriage law. The <traditional> answer makes a
distinction between public and private realms. It treats society
as having at least three fundamental categories: individuals,
civil society, and the state. A traditional legal regime, for
instance, treats marriage as a fundamental institution of civil
society, not merely as a codification of an interpersonal
relationship, or as a contract between two individuals. It
acknowledges that it is recognizing, not creating, marriage.
The <liberal> answer also makes a distinction between the public
and private realms, but with a crucial difference: It puts the
individual at the center of society, and treats all associations,
including the state, as somehow derivative of the individual, and
authoritative only insofar as they benefit individual interests.
The <postmodern> view is founded upon a particular view of
pluralism. Postmoderns emphasize the plurality of "discourses,"
and assert that no one "discourse" can actually be "true." At
most, we have socially constructed "traditions," to be de- and
reconstructed according to the perceived needs of a particular
community.
Each approach makes judgments about <truth> (whether it admits
this or not) and then proceeds to answer other questions about
culture and law. What counts as "justice," "equality," or
"discrimination" depends heavily upon each particular view of
truth. Each approach also judges what it will <endorse>, and what
it will <tolerate>. Each establishes a preferred view, while it
seeks to accommodate those on different ground. In other words,
each aims to be <pluralistic>.
Same-Sex Marriage?
The self-proclaimed gay and lesbian lobby has made it clear that
the <definition of marriage> is the core of the issue- they do not
want to broaden marriage, they want to redefine it. The debate
about same-sex marriage, therefore, is a debate about <marriage>.
It also should be clear that the liberal and postmodern models of
marriage are not creations of the gay and lesbian community. As
more Americans have diluted or shifted their beliefs and moral
values, the cultural definition of marriage has become unstable.
This, more than anything, has opened the door to arguments for
same-sex marriage.
Which model of marriage should guide our laws? If one adopts the
Complementarity model, then the right to marry will be limited to
male-female couples. If one adopts the Choice model, then the
right to marry will be the possession of every individual,
regardless of either partner's sex. If one adopts the Commitment
model, then the right to marry will be the possession of any
couple willing to make a public declaration of their union, as it
is defined by the larger community, embodied in the state.
Each model reflects assumptions about reality and society-
traditional, liberal, or postmodern. Each has some support among
the different communities of belief that make up contemporary
America. Yet no regime can adopt all three models simultaneously.
Marriage cannot be <primarily> an institution <and> primarily a
relationship <and> primarily a contract between individuals all at
the same time. So the real question is not <whether> one model
should be preferred over another, but <which> model it should be,
and why.
I find the traditional model compelling. Why? Because it coheres
with my beliefs, experiences, opinions, and practices, which are
based upon my fallible but honest attempt to know the truth. I
believe we exist in a universe that has an order that provides
guidance for our lives. Part of that order is the difference
between men and women, which is woven deep within the fabric of
their humanity. If this is true, it makes sense that there is a
distinctive male-female community that unites those who are
different and images the fullness of humanity.
It does not surprise me that such a community links past, present,
and future, with its essential task of creating and educating the
next generation. It also makes sense to me that people would seek,
and find, fulfillment and mutuality within the framework of this
marital community. If this community is so fundamental to human
society, it also makes sense to me that religious communities
would bless it, and governments recognize it. This, in fact, is
what we find. Not entirely, to be sure, but for the most part; and
in a world in which good and evil co-exist, "for the most part" is
enough to make it compelling to me.
The traditional model is preferable to the liberal and postmodern
models. It is preferable because it can subsume the insights of
the liberal and postmodern models without redefining the meaning
of marriage, whereas neither the liberal nor postmodern model can
effectively incorporate the insights of the traditional model in
the same way. The traditional model affirms the reality of sexual
difference while recognizing both the importance of the
individuals involved (the insight of the liberal model) and the
importance of the marital relationship (the insight of the
postmodern model).
Is it legitimate, in our constitutional system, to enact a
specific model of marriage into law when there are different
models of marriage? The best model of marriage to embody in
positive law, democratically speaking, is that which reflects the
beliefs, experiences, opinions, and traditions of the majority of
citizens in a particular jurisdiction. In our society, which
professes a belief in pluralism and tolerance, one of the criteria
for the best model of marriage will be that model that also allows
room for other, dissenting models. The choice of a model of
marriage is a choice of the people, acting directly through a
constitutional convention, or indirectly through their elected
representatives. If unelected judges who prefer other models
impose their favored policies on the people, they will jeopardize
the legitimacy of our laws.
Which of these three models of marriage has been chosen by the
American people? This is not a hard question to answer. The
traditional model is the existing definition of marriage in every
state. It is our official practice, adopted by democratic means.
In contrast, no state has yet adopted the liberal or postmodern
model of marriage (although no-fault divorce could be seen as a
move in this direction). Liberal and postmodern arguments that
sexual difference is irrelevant or illusory can be heard in many
places, to be sure, whether in the media, elite universities, or
in nontraditional religious communities. But the majority of
Americans still do not believe that where sex is concerned, "we're
all the same" or "everybody's just an individual." No court will
convince them otherwise.
The traditional model represents the practical judgement of many
generations that marriage has something to do with sex; that sex
has something to do with sexual difference; and that sexual
difference has something to do with children. They believe that it
makes a difference whether children are raised by a mother and
father together. They respect the heroic efforts of single parents
in difficult circumstances, and they understand that children are
being raised by same-sex couples. But they believe, deep down,
that children need a mother <and> a father, both actively involved
in their lives, to develop healthy sexual and emotional character.
Americans experience sexual difference as a reality, not an
appearance, that exists amid the diversity of social customs. They
acknowledge this reality in the way they raise children, organize
social life, and structure public spaces. Americans from widely
varying religious traditions, both Western and non-Western, affirm
this in their communities of worship. Coming together as citizens,
they have chosen to embody this reality in the special legal
status they give to a man and a woman who are willing to become a
total sexual community-lifelong, exclusive, and faithful. This
ideal is embodied in our laws, even if many do not meet it.
For the sake of tolerance and pluralism, Americans are willing to
accept the right of same-sex couples to live their private lives
as they see fit. But they make a distinction between the
institution that they publicly endorse (marriage) and individual
behavior that they privately tolerate (various nonmarital sexual
relationships). Ironically, by affirming the reality of civil
society alongside individuals and the state, the traditional model
makes greater room for diverse communities of belief and practice,
and resists tendencies (either liberal or postmodern) toward
state-enforced homogenization.
Where Do We Go from Here?
There is much creative intellectual work to be done. Once we
understand the depths of the crisis we face, we can go to the
roots of our own views, and articulate them more clearly. Then we
must renew the jurisprudence of associations like marriage and
apply it to constitutional law. Both disciplines are locked in a
stalemate between individual rights and state interests, crippling
the ability of legal theorists to do justice to the reality of so-
called mediating structures. If we draw on the riches of ordinary
human experience, it will be possible to rearticulate a cultural
and legal understanding of marriage that can serve the eventual
renewal of American life.
If this happens, once again we will have a language for talking
about marriage and family as the foundation of civil society,
distinct from religion and the state, though recognized by both.
Individual rights claims concerning marriage could then be put
into their proper context, rather than be used to redefine
marriage. We will see a new blending of jurisprudence, common law,
statutory law, constitutional law, and international human rights
law, in which marriage as an institution is fully recognized in
law as in life.
We must also be actively involved in the cultural and political
competition that continues to rage. We do not have to wait for the
theorists in order to participate in it. We need not be shy about
explaining the foundation of our existing marriage laws, or our
reasons for preferring the traditional model. Once decision-makers
and the public see the deeper roots of the arguments for same-sex
marriage, there is some chance they will recoil from the
implications of redefining marriage.
Our defense of marriage flows not only from our faith, but stands
in the great line of American social movements. With Dr. Martin
Luther King Jr., we can affirm that "the arc of the universe is
long, but it bends toward justice." With the prophet Amos we can
say, "Let justice roll down like waters, and righteousness like an
everlasting stream." If the liberal credo is "justice to
individuals," and the postmodern credo is "justice to
relationships," our credo is "justice to institutions"-starting
with marriage. We have come to a defining moment. Our message to
the state is crisp and clear: You are not God. <Do justice to
marriage.>
INVASIVE AIRWAVES
To many the issue of gay marriage seems to have sprouted up
overnight. But in point of fact the cultural seeds were planted
long ago, conservatives just weren't looking. While attention was
fixed on the everyday details of life, gay marriage was seeping
into the culture through movie screens, television sets, and
especially on the stages of Broadway.
Through each new offering the culture was treated to a theme, more
or less the same: So long as there is love, gender is irrelevant.
How far we have come from the days of <Some Like It Hot> and
<Uncle Miltie>-when drag was used as a comedic device. Now it is a
tool of social action. The snowball spun into an avalanche with
films like <Mrs. Doubtfire>, and to a lesser degree, <Tootsie>. In
both films we met men who were not gay, but used drag to
accomplish some purpose. Dustin Hoffman needed a job, Robin
Williams wanted to be near his children. In each case a "motherly
quality" emerged through all the makeup and falsies, confirming
the notion that a man can easily replace a woman-so long as there
is love.
We now have films with gay men in drag, packing an agenda. Men who
want children and in some cases to raise them. Look at <Torch Song
Trilogy> (which was originally a Broadway play) and <The
Birdcage>, the smash-hit remake of the French film cum Broadway
musical, <La Cage Aux Folles>.
In recent days, no film has preached the gospel of gay marriage to
the mainstream like <The Birdcage>. Opening with Sister Sledge's
"We Are Family," <The Birdcage> lets you know where it's going
right from the start. Armand (Robin Williams) runs a drag club in
Miami, where his lover, Albert (Nathan Lane), is the star drag
attraction. Together they have raised a son, who returns to the
nest announcing his intention to wed a conservative senator's
daughter. Unable to maintain a masculine facade while meeting the
girl's parents, Albert dons a wig, a Barbara Bush frock, and
<voila>-he's mother! Bit by bit the tendential screenplay proves
the superiority of this gay "family" over the bickering idiocy of
the heterosexual couples. When Albert finally is unmasked as a
man, the "son" proudly announces: "My father owns a night dub, my
mother is in the show." His biological mother forfeited the boy in
a settlement twenty years prior, proving again the hard-
heartedness of these accursed heterosexuals.
Now a few films do not cause a culture earthquake, but take a look
around at the rest of the pop arts, paying particular attention to
programming aimed at young audiences. The popular MTV program <The
Real World> features a gay character (now deceased) who "married"
his boyfriend in one episode. The twenty-something staple,
<Friends>, also featured a "gay marriage," this time between two
lesbians. And the "gay marriage" drumbeat coming from the talk
shows is deafening. Drag queens, gay activists, lesbians, and all
manner of "gay couples" stampede into our living rooms daily via
these blab fests. The other day during one of my midday surfs, I
caught a gay marriage proposal complete with rings and weeping on
<Ricki Lake>. The conversion of the young is nearly complete. All
of this leads me to believe no matter how many "Defense of
Marriage Acts" sail through Congress, "gay marriage" will not go
away. The very thing that introduced gay marriage into the culture
will perpetuate it. I can assure you the arts will not back down.
If conservatives want to reaffirm the dignity of traditional
marriages and stem the tide of gay unions, they had better leave
the legislative ink aside and begin to focus on the arts and the
persuasive cultural powers therein. RAA
This article was taken from the July/August 1996 issue of "Crisis"
magazine. To subscribe please write: Box 1006, Notre Dame, IN
46556 or call 1-800-852-9962. Subscriptions are $25.00 per year.
Editorial correspondence should be sent to 1511 K Street, N.W.,
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