Ross has been doing a yeoman’s work making me almost regret my critique of his essay on gay marriage by offering a patient, sophisticated case for preserving the “ideal” of heterosexual marriage.

Specifically, I was pleased to see him affirm my point that the legal affects culture in addition to reflecting it, a point often lost on my peers .  One of my favorite moments is when he turns the civil rights narrative on his opponents to prove the point:

Second, I think that most of Greenwald’s examples of cultural norms that aren’t legally enforced actually tend to back up my belief that law and culture are inextricably bound up, rather than his case that they needn’t be. A stigma on racism, for instance, would hopefully exist even in a libertarian paradise, but it draws a great deal of its potency from the fact the American government has spent the last 40 years actively campaigning against racist conduct and racist thought, using every means at its disposal short of banning speech outright. The state forbids people from discriminating based on race in their private business dealings. It forbids them from instituting policies that have a “disparate impact” on racial minorities. It allows and encourages reverse discrimination in various settings, the better to remedy racism’s earlier effects. It promulgates public school curricula that paint racism as the original sin of the United States. It has even created a special legal category that punishes crimes committed with racist intentions more severely than identical crimes committed with non-racial motivations. In these and other arenas, there isn’t a bright line between the legal campaign against racism and the cultural stigma attached to racist beliefs; indeed, there isn’t a line at all.

Ross suggests that as gay marriage is legalized, the stigma against those who have old-fashioned views of marriage will increase and the line between culture and law will continue to blur.  That’s near the center of the social conservative anxiety over gay marriage,  despite the Constitutional protections that are in place to preserve the “freedom of religion.”  Like freedom of speech, the ability to practice our religion doesn’t seem to be absolute when the “harm” of other individuals is in question.

But the heart of Ross’s case–so far–is his description of heterosexual relationships as “thick,” which I joked below is precisely what philosophers use when they have nothing else to say.  The argument is that the gender differences and procreative impulses add an additional layer of complexity to heterosexual relationships that distinguishes them from homosexual relationships, which inevitably have to be characterized by “love and commitment”–and nothing more.

On this account, the slippery-slope argument isn’t a social argument, but what I might call an “in-principle” argument.  There is nothing that stops the “logic of gay marriage [from being] extended to encompass all kinds of relationships that we definitely don’t want to call marriages.”

That’s a more interesting way of framing the debate over marriage, in that it refuses to bow to the pressure to identify a single good as determinative of heterosexual relationships and instead identifies a inextricably linked cluster of attributes that demarcates them as unique.

But in terms of the state’s interest, Ross seems to come down where social conservatives always have:  procreation.

“And the fact that this interplay determines how and when and whether the vast majority of new human beings come into the world is what makes it possible to argue — not necessarily convincingly, but at least plausibly! — that both state and society have a stronger interest in the mating rituals of heterosexuals than in those of gays and lesbians.”

There’s a key point lurking here which Ross does not make, but is worth teasing out:  the complex relationship of procreation, gender differences, and reproductive impulses that is heterosexual marriage exists “pre-politically.”  It is a relationship that only needs a man and a woman to exist, without any need for the surrounding society or its institutions, even while they might be interested in it.

The same, I suggest, cannot be said for gay marriage.  It’s tempting to respond to Ross by suggesting that the possibility of gay adoption resolves the “thickness” objection by introducing children into the equation.  But that ignores the structural difference between gay unions and heterosexual unions.  The former necessarily depend upon some third party for the introduction of children, either through adoption, artificial insemination, or some other method.  They cannot be a child-bearing couple, and to be a child-rearing couple they have to get someone from outside the relationship involved.  So while the adoption of children may make gay unions more “complex,” and hence more similar to heterosexual unions on that score alone, it is a complexity that is not intrinsic to the relationship itself, but that lives between the gay couple and the world.

There is, though, a corollary to this:  gay families demand a higher level of social involvement than heterosexual unions, and by extension, political involvement.  Within a legal order, adoptive parents are parents by virtue of the state’s recognition of them as such, rather than because they were the procreators of the child and hence naturally responsible for its well-being.  Their obligations to their children exist by choice, a choice that exists within the structure of the state and its guidelines.  In that sense, same-sex marriage necessarily depends upon the state to support and buttress homosexual couples in their pursuit of having children.

But let’s take another step back.  Abortion proponents have suggested that the state’s interest in children is only in their rearing, and not in the fact that they are conceived.  In that sense, the predominate position on the question is one of choice–“children” become the sort of things that are valid only when chosen, rather than having their own value by virtue of the fact that a mother conceived them.  What constitutes the relationship between parent and child is not the biological fact that they are his progenitors, but the commitment, love, and acceptance that is expressed in the decision by the parents to keep the child.

Because the state (at a federal level) seems to have adopted this view of children and procreation (as measured primarily by Roe), the argument that procreation is enough to justify the state’s exclusive interest in heterosexual marriages has little weight.  It certainly has little cultural weight, where the notion that children are chosen is so deeply ingrained that people thought Juno was a pro-life film.  For our society, the state’s interest is in relationships that choose children, heterosexual or otherwise, not those that have or can have them.   Hence, we have no ground to stand on to distinguish between heterosexual couples that have children naturally and homosexual couples that adopt them.

In that sense, it’s hard to separate the logic of the pro-choice crowd from the pro-gay-marriage crowd.  Their view of children is fundamentally the same.  What this means for those who want to be pro-life and pro-gay-marriage (even politically) I’m still working out.  But I suspect there’s a deep dissonance at some level that inevitably leads to the downplaying of pro-life commitments.

To return to Ross, though, I’ll simply note that the one thing he hasn’t yet clarified is his claim that the death of the marriage ideal might make the legal recognition of homosexual marriages “morally necessary.”  Perhaps I’m pushing the worry too far, but it seems like the state has moral obligations not only to protect the rights of the people it governs, but to protect only those rights that the people actually have.

If heterosexual marriage is a different sort of thing than homosexual unions–as Ross has persistently and elegantly argued–then I’m curious to hear what legal and moral deliberation leads him to the surprising conclusion that those differences should not just be ignored by the law, but that the law would eventually be wrong to ignore them.

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Posted by Matthew Lee Anderson

Matthew Lee Anderson is the Founder and Lead Writer of Mere Orthodoxy. He is the author of Earthen Vessels: Why Our Bodies Matter to our Faith and The End of Our Exploring: A Book about Questioning and the Confidence of Faith. Follow him on Twitter or on Facebook.

0 Comments

  1. Matt: This was a very satisfying blog post. You impressed upon me how same-sex marriage diminishes what you frequently call “the natural order of things,” namely gender complementarity, procreation and child-rearing. In short, same-sex marriage is hostile to biology and its moral obligations. Well done, my friend.

    I sense from these remarks that you think the government should be involved in protecting and promoting marriage for the social good. That is not an argument that I want to casually dismiss, but what about the libertarian alternative: a withdrawal of the government from marriage altogether? Is it possible? Is it desirable? For the sake of legal equality, civil unions could be granted to opposite-sex and same-sex couples for issues pertaining to spousal labor, property, debts, visitation rights, legal guardianship of children, property rights, etc. Under the libertarian model, marriage would be decided by churches and synagogues instead of courts, legislatures, and referenda. Are there any historical examples of the libertarian model of marriage? Did they succeed or fail in protecting and promoting marriage?

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  2. The Choice of Children: The Logic of Gay Marriage and Abortion …: In that sense, it’s hard to s… http://bit.ly/bf4cV0 #HumanRights #RWE

    This comment was originally posted on Twitter

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  3. Christopher,

    As far as I know, there are no examples of what you’re suggesting.

    And isn’t that just opening “marriage” to gay couples and calling it by a different name?

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    1. Perhaps other Mere-O readers know whether there has been any time in human history when the government was not involved in the protection and promotion of marriage. During the time that Jesus lived, for instance, did the Roman empire get involved in marriage or did it leave marriage to the synagogues? I am not advocating the libertarian alternative, but it does have a certain kind of attractiveness because the polity of the church is separated from the polity of the state. I know gay activists have viewed civil unions as a gateway to marriage, but if the government withdraws from marriage altogether then civil unions would be the only option. Under that scenario, civil unions would not “marriage” by a different name. In a pluralistic society, what legal obligations, benefits or protections should be granted to same-sex couples?

      On another matter, when I listened to Ted Olson talk about the Prop 8 ruling, he repeatedly said the U.S. Constitution protects marriage as a “fundamental right.” For the life of me, I am unaware that the Constitution says anything explicit about marriage.

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      1. Matthaeus Flexibilis August 13, 2010 at 10:39 am

        Christopher,

        It’s an interesting question you raise: If a majority of our pluralistic society has adopted a non-traditional view of marriage (involving easy divorce, SSM, etc.) and if the government gets out of the marriage business, what would the proper benefits/protections for civil unions be?

        I don’t have any easy answers, but related to this theme, I’d recommend an article by Susan M. Shell called “The Liberal Case against Gay Marriage”, which can be found here: http://www.nationalaffairs.com/public_interest/detail/the-liberal-case-against-gay-marriage

        One thing she proposes is that, while we’re defining what a civil union is, we should allow it to include, e.g., two elderly sisters who live together for mutual support but are obviously not romantically involved in any way.

        Reply

      2. Christopher, I don’t understand the attraction of the totally distinct spheres of polity and state–nor would the Lutherans, I don’t think. : ) The hard division strikes me as more anabaptist than anything.

        But yes, the Roman empire was involved in marriage. Early Christians would, I believe, sometimes go get married by the empire, then have their marriages blessed in church.

        But I’m confused. Aren’t you proposing that the state withdraw from “marriage,” but give “civil unions” all the benefits that are currently given to “marriage”? Could you clarify what benefits would be different between “marriages” now and civil unions then? Additionally, would these “civil unions” be restricted to people who engage sexually, or could any cohabitants apply and get them, like caretaking relationships?

        Reply

  4. This is all very well, but I think this is, as the kids say, a fail.

    Ross equated two traditions of companionship as equally valid and commendable to the wider public. I understand that he is trying to have a discussion with the widest of audiences, which necessarily includes homosexuals. In doings so, however, he ends up shuffling the terms in such away as to obscure most of differences between marriage and homosexuality. Here are a few more problems not in the piece and not addressed in the follow-up blogging (which is also a problem in and of itself: to have a scandalous wide release movie and then make the most crucial qualifications in an art house flick, small release sequel):

    1) he praises the emotional commitment of homosexuals, which is not how those relationships are. Statistics are very one-sided: there is promiscuity galore even with full knowledge of both partners in a so-called steady relationship. Stanley Kurtz has great work on this…something like 6 partners per year *within* the context of a “stable relationship” (don’t quote me, go look it up). And those stable relationships are what the homosexuals claim they have already and why they ought to have “married status.” They dispensed with the stabilization argument, because the fact of gay promiscuity has slipped off into taboo land. That means cruising and that means recruitment of lovers, which hurts traditional society, Christians, hetero married couples etc. Don’t believe it? Then you don’t have enough friends who are good looking men.

    2) Homosexuals are 40xs more likely (that’s according to the CDC) than hetero males to contract STDs, esp. AIDS. That is a major humanitarian crisis. Here we ar talking about trembling conservatives fearing cultural reprisals in an absurd post-modern mine-field of taboos (which I m now traversing) when we should be asking what can be done for our fellow citizens who are dying young and living sick. The idea that SSM will solve the problem has been proven a canard–see point 1 above.

    3) Ross turns his back on–for the sake, I hope, of attracting interlocutors who might otherwise be turned off (gays, pro-SSM advocates)–one of human civilization’s greatest tools for health and human flourishing, namely the understanding of fallen nature or (the non-Christian construction:) free wills potential to choose against nature to its detriment–natural right, natural law, what you will. He makes a “good” and vigorous case for why heterosexual monogamy is “unnatural” by citing the various deviations from it. In doing so, as I noted in my last post, he ignores the vast amount of counter-evidence for monogamy’s wide-spread practice, the Ural and German tribes (one of the most populous cultures on earth for centuries and centuries) and the Roman republic and empire (another enormous population, not to mention a wildly successful culture for the preservation of rights etc–at least compared to the rest of world culture, one of which was monogamy which they explicitly saw as a great good). He further obscures this important institution and the philosophical understanding of failed human nature and free will by conflating serial monogamy with polygamy. “Serial monogamy” is not good, but toleration of it is nothing like the toleration of polygamy or SSA (same-sex anything). It is a black-eye on the institution of marriage, but it is very understandable insofar as serial monogamy is very common for human life without modern medicine. That is, many people had (and some still have) several spouses due to death, men especially because of maternal death in child birth. That is, serial monogamy does not call into question the major justification for marriage in civil society. Ross is answering a specious objection of SSM proponents and dealing with contraceptive guilt in an amalgamated argument that ends up, as he says, equating the emotional commitment to gay relationships with that of heterosexual ones. There is also no hint in the piece that marriage is under vast pressures due to current law and culture (pornography, public educational indoctrination of moral relativity and celebration of gay culture, general willingness to propogandize this issue in the press and the universities, and the federal and state governments, not to mention gay coercion of established institutions in order to shift the debate, as in the case of the redefining of homosexuality as NOT a disorder, which was a program of intimidation, deceit, death threats and silencing of debate–by their own proud admission). Considering points 1 and 2 above, this is a real shame–I would say scandal. For it is one thing for Ross to remain silent on these subjects–a pity, but perhaps his prudence dictates it (not for me to say)–but it is another for him to send a column (pun intended) against it. Ross claims in the piece that because there are negative examples of transgression of the ideal of marriage that we are therefore in a post traditional time and ought to get with the program by conceding moral equivalency with gay unions and then discussing traditional marriage in terms of added benefits. Since marriage is, as Ross knows, in bad shape, that rhetorical ploy is defeated before it is launched. He painted a beautiful picture of marriage, but the end result of his account is that of a rare orchid on the cliffs of Kawaii, fragile and nearly non-existent. Sorry, but that will not convince anyone to arrange a society around such an institution–maybe a greenhouse or two, so people can pay to look at the flower when they feel like it.

    Ross’s blog posts further cloud the issues and principles at play. My sense is that he is attempting to shuffle the deck of terms and ideas, decoupling the historically charged terms and ideas from the issue at hand in order to have a calm discussion with homosexual or, more widely, liberal sexual culture. The project–if it is indeed his project–is, alas, folly. If something like this is not his project, then I can only say that either his ignorance or his cowardice excludes him from engaging in this debate without doing terrible harm to his own side of this debate. My sense is that Ross is not a coward but that he is ignorant of just how much he has conceded in this piece. He wants to think this is not a debate but a societal group session, but it is the former and not the latter no matter how much Ross wishes for the latter by dismantling the terms of the debate for the sake of an uneasy peace on the streets of Manhattan and in the halls of the NYTimes.

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  5. Matt,
    Your connection between gay marriage and abortion is interesting, but I think the progression reaches back before Roe.

    I’ve long thought that the wide availability and acceptance of contraception has paved the way for the current debate by decoupling marriage and procreation long before gay marriage was even an issue.

    At the risk of being offensive, I think I missed a step – a fuller progression is contraception -> abortion -> gay marriage. That is not to equate the first with the latter two in a moral sense (or even to say that contraception can’t be used responsibly), but to show how each step led to a progressive decline in how we as a culture value conception, and an increase in how we value children-as-chosen, rather than children-full stop.

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  6. @americanpapist I’d be curious to hear your thoughts on my argument here: http://bit.ly/aYhrz1

    This comment was originally posted on Twitter

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  7. Matthaeus Flexibilis August 13, 2010 at 10:13 am

    Thanks for your thoughts, MLA. I’d continue to urge patience for a bit. Douthat has more installments promised, including a reply to Andrew Sullivan, in which he will continue to expand his arguments and respond to criticisms. This is a huge task he’s taken on himself. Considering his wide audience, let us pray for him (really!) that he argues wisely and persuasively.

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  8. Gabe,

    I agree that socially that contraception plays a role in allowing the logic to be accepted. However, it’s not clear to me that contraception *necessarily* depends upon the logic of choice. O’Donovan has an interesting line on this in Begotten or Made where he says basically that it was inevitable that it would become a part of that logic, but that in principle it’s separable. I’ll try to dig that out this weekend.

    Matthaeus, I agree about patience. My return to my worry at the bottom was simply to try to clarify it in my own mind, and to goad him into responding to it directly. : ) We’re small-fry compared to him, so I gotta do everything I can to get him to pay attention. : )

    matt

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  9. […] This post was mentioned on Twitter by Swarm for Life, Matthew Anderson. Matthew Anderson said: @americanpapist I'd be curious to hear your thoughts on my argument here: http://bit.ly/aYhrz1 […]

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  10. Matt,

    This is a fantastic post and an excellent summary of Douthat. Though I am simplifying the terms, a combination of yours and Douthat’s thoughts lead me to believe that heterosexual marriage will forever be superior to that of gay marriage, even if gay marriage becomes a protected right.And moreover, the issue of what is “pre-political” versus what occurs only through means of judicial access is an excellent point of dialogue for evangelical musings on the subject. This will, I think, require us to bring up the discussion of natural law.

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  11. Matt,
    I agree, I was speaking of a social connection and not a necessary one. But it is hardly a point in contraception’s favor that it is logically possible to use it in a way that affirms the value of children-as-such, apart from our choice.

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  12. Andrew,

    I suspect at some point natural law might sneak in. But O’Donovan would be a better place to turn (hint, hint!). : )

    Gabe,

    “But it is hardly a point in contraception’s favor that it is logically possible to use it in a way that affirms the value of children-as-such, apart from our choice.”

    I don’t know what you mean by “point in contraception’s favor.” Favor for what? Are you suggesting that the social use of contraception is an argument that it is intrinsically ethically immoral?

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  13. Matt,
    I am suggesting that the widespread use and acceptance of contraception has been damaging to the traditional family and the cause of life (through the progression mentioned in my comment).

    This was inevitable (to use O’Donovan’s word), and to defend it on the grounds that it is logically possible to use contraception in an ethical way (which I concede) rather misses the point. But maybe I misunderstood your first comment, and you were not offering such a defense.

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    1. Gabe, ah, all clear. Sorry–I think I misread your first comment. : ) I think we are in agreement.

      Reply

  14. Christian Lawyer August 14, 2010 at 7:24 pm

    Ronald Reagan noted (and repeated in numerous slight variations): “I have read the constitutions of a number of countries including the Soviet Union’s. Now some people are surprised to hear that they have a constitution, and it even supposedly grants a number of freedoms to its people. Many countries have written into their constitution provisions for freedom of speech and freedom of assembly. Well, if this is true, why is the Constitution of the United States so exceptional? Well, the difference is so small that it almost escapes you – but it’s so great it tells you the whole story in just three words: We the people. In those other constitutions, the government tells the people of those countries what they are allowed to do. In our Constitution, we the people tell the government what it can do and that it can do only those things listed in that document and no others.” 1987 State of the Union Speech.

    Many conservatives now, like one of the commenters above, have rejected Reagan’s view and now believe the ONLY rights granted to individuals are those expressly spelled out in the Constitution. Marriage has long been considered a “fundamental” right under the U.S. Constitution. Like the right to habeas corpus, it existed before the Constitution and the Constitution prevents most types of interference with that right.

    “These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” Loving v. Virginia, 388 U.S. 1, 12 (1967).

    Matt asserts that “It is a relationship that only needs a man and a woman to exist, without any need for the surrounding society or its institutions, even while they might be interested in it.” To the contrary, I think the history of law and marriage demonstrates that our legal and political instituions have long been intimately involved in marriage and divorce and thus straight couples need “society and its institutions” just as much as gay couples do. For example:

    “Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. [snip] At common law, marriage as a status had few elements of contract about it. For instance, no other contract merged the legal existence of the parties into one. Other distinctive elements will readily suggest themselves, which rob it of most of its characteristics as a contract, and leave it simply as a status or institution. As such, it is not so much the result of private agreement as of public ordination. In every enlightened government it is pre-eminently the basis of civil institutions, and thus an object of the deepest public concern. In this light, marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity.'” Maynard v. Hill, 128 U.S. 190 (1888).

    Moreover, the law has always treated straight couples who have biological children just the same as straight couples who adopt or who who do not (or even cannot) have children. Once a child is adopted, s/he is the child of the adoptive parents for ALL purposes and the law will treat that child exactly the same as the biological child of that same parent. Thus, while it may be that straight couples are theoretically different from gay couples in the ability of some straight couples to bear biological children, the law should not treat gay couples any differently than the law treats straight couples who can’t or won’t have biological children of both parents. Why is a gay couple, who may have a child of one but not the partners, any different from a straight couple that has a child of one but not both of the partners? That some other hypothetical “ideal” straight couple has the biological capacity to reproduce does not (or should not) affect the rights of the gay couple with a child of one partner to be treated exactly like the straight couple with a child of one partner.

    I have to also say that some of the discussion of the “ideal” of the straight couple with biological children comes perilously close (although I’m certain that’s not the intent) of implying that families with adoptive children fall short of that ideal. For the pro-life community, I’m not sure you want to go in that direction.

    Reply

  15. It occurs to me that there really isn’t any laws left against swingers, generally straight couples, often married, who openly have affairs with others. Such marriages are perfectly legal and since no-fault divorce has basically made adultery no longer automatic grounds to ‘lose’ in divorce court, much less legally risky. In terms of numbers such couples almost certainly swamp gay marriages. Gays are about 5% of the population, even assuming a 50% marriage rate you can only get 2.5% of the population in SSM. I bet more than 2.5% have entertained ‘swinging’ in some form or another.

    Yet despite the fact of a more or less friendly legal environment and larger numbers than SSM, swinging is not looked upon seriously and its not entertained by most as a serious alternative to marriage. Ask most people about it and you’ll probably get a shrug summed up by something like “yea some people do that but I never really got it”. So despite the fact of swingers the ‘traditional view’ that marriage should be faithful has not really seen an increase in ‘stigma’.

    The civil rights movement did use law but ultimately it was about culture that drove the law. The view presented here seems like a form of soft-cultural socialism where gov’t is being presented as some type of master of culture and gov’t planners will control the dials of culture by changing the types of marriages that are legal. It’s amusing that people would flock to this view of things having long ago seen the economic view of gov’t as micromanager trashed so effectively.

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  16. […] I have plans to return to the issue of homosexuality sometime soon to affirm Ross’s excellent clarification, address Jan’s excellent query, and to try to respond to a few comments. […]

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