SSM Debates on

Over on, Jonathan Rauch and Maggie Gallagher are debating SSM. Go here and then scroll upwards to read the ongoing debate. Here’s a quote I liked from Rauch; it makes a point we’ve all heard made before, but it makes it particularly well:

Justice Robert Jackson: “There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” (Concurring, REA vs. NY, 1949)

Justice Antonin Scalia: “Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” (Cruzan v. Missouri Dept. of Health, 1990)

Everyone rightly accepts as a core premise of liberalism that the majority can’t keep two sets of books, one for itself and one for minorities. Anyone in American politics who flouts this principle will, eventually, lose, and will deserve to. It seems to me that opponents of same-sex marriage should just relinquish the argument that marriage is only for procreative couples (if that’s what they mean by “marriage is for procreation,” which can mean a number of things).

Historically and empirically the argument is incorrect: marriage has everywhere and always been for both procreative and nonprocreative couples. This is not a technicality or a grudging exception. All societies celebrate when post-menopausal women marry. They recognize that banning such marriages would do nothing for children or procreation.

Even if the allowance for (millions and millions of) heterosexual nonprocreative marriages were a loophole or an exception, the exception should be applied evenhandedly, not selectively or self-servingly by and for the people who have the votes. See Mr. Justice Jackson, above. If the rule is that only fertile couples can marry, fine. If the rule is that only couples who actually have biological children can marry, fine. If the rule is that only couples who are rearing children (bio or non-bio) can marry, fine. Well, not fine, but you get the point: the rule that infertility disqualifies all gay couples from marriage but disqualifies no straight couples is a crass double standard that demolishes the very principle (marriage=procreation) on which it’s supposed to be based.

Rauch suggests that SSM opponents should move to a different argument:

I’m admittedly not the best person for SSM opponents to take advice from, but, as I say, they should just drop the claim that marriage is only for procreative (fertile) couples. Give it up. Throw it away. They would be better off talking about a stronger, if subtler, kind of argument that Maggie and Eve, among others, have made: marriage valorizes mother-father families and this serves crucial social goals. I disagree with that argument, but it is logically tenable and not hypocritical, because it grounds marriage in gender difference rather than in procreativity. On that we can have a coherent debate that respects liberal principles.

I agree that the “marriage valorizes mother-father families and this serves crucial social goals” – which is essentially the argument Elizabeth was making - is a stronger argument than the ridiculous “marriage is about reproduction, so non-reproductive couples can’t marry, unless they’re heterosexual in which case forget the whole thing” argument. However, the “valorizing mother-father families” argument naturally raises some questions:

  1. Why is it acceptable to oppose same-sex civil rights in the name of valorizing mom-dad families, but not acceptable to oppose the civil rights of heterosexuals for the same purpose (i.e., by banning divorce or returning to coverture laws)?

  2. Is promoting a particular ideology of gender relations a compelling government interest?
  3. If so, is banning marriage equality the least restrictive means of furthering that compelling government interest?
  4. Is injustice to a minority justified if the injustice sends a valuable message or valorizes a social good? Would unequal laws against blacks or women or Catholics be justified, if legal inequality against these groups sent a valuable message?
  5. If it were practically viable to do so, ought we forbid cross-dressers of either sex from marrying, in order to promote “correct” gender-role ideology? How about effeminate men and butch women?
  6. How does transsexuality fit into this? Should transsexuals be barred from marriage altogether, since no matter which sex they marry, it can be construed as in some way questioning “correct” gender-role ideology?

More and more, it’s becoming clear that the debate over same sex marriage is a debate over the right of conservatives (mostly, but not entirely, Christian fundamentalists and right-wing Catholics) to put the force of law behind their particular gender ideology. Historically, this is the same debate that feminists have faced since feminism began; the people opposing SSM are the ideological heirs of the people who opposed allowing women to attend college, to vote, and to own property.

* * *

There’s also an interesting debate between Mark Barton and Eve Tushnet. It’s hard to know where to start, but here’s a good place; scroll upwards. Here’s a quote from Mark I enjoyed.

Eve: If you think that’s a problem, it’s obviously a fairly large difference in kind–not just in degree–between the “exception” of childless married couples and the “exception” of same-sex couples.

Mark: Having put the original procreation argument to bed, let’s turn to what is the independent argument in terms of childrearing. This was the secondary argument in Goodridge. However I’m afraid I don’t think that in 2004 we’re obliged to respect as serious Eve’s presentation of it above.

The issue has been studied. We have actual data. The studies are by no means the last word, but neither are they junk. Opposite-sex and same-sex couples cannot be credibly described as having “obviously a fairly large difference in kind” with respect to parenting outcomes any more than blue-eyed couples versus brown-eyed ones. Now of course Eve is welcome to invoke caution and argue that there might be small but important differences, or large differences in variables that haven’t been studied, but I think at this stage of the game “obviously” and “large” should be considered beyond the intellectual pale.

The “people who can’t procreate shouldn’t be allowed marriage, unless they’re heterosexual people in which case never mind” argument is, I think, on its deathbed. Probably most of the people who are now saying that this argument is essential will have migrated away from it a year or two from now.

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5 Responses to SSM Debates on

  1. 1
    Amanda says:

    I wonder along with you how the SSM opponents handle the fact that a lot of heterosexual couples do not fit well into their assigned gender roles. When talking to people about it, I realize that there is an assumption that in any relationship, it’s inevitable that there is a passive-female and an active-male role and that each person’s role only solidifies as the relationship goes on. You hear this attitude echoed in the stereotype that same-sex couples adopt “husband” and “wife” roles.

    So I suppose the belief is that marriage itself will cause people who do not adhere well to their assigned gender roles to do so. Since I’ve gotten into a long-term relationship, my family is always searching to see if I’ve gotten quieter and more passive, i.e., more “feminine”.

  2. 2
    Josh Jasper says:

    Anti SSM people never seem to address the fact that civil union rights are non-portable, and revokable in an instant. The Michigan state case proves that even the most basic civil union-like rights are revokable by a hostile state legislature, and that such legislatures exist all over the country.

    A same sex couple with health benefits in one state is not able to move anywhere in the country as a heterosexual couple with marriage rights can. It’s not fair, equal, or tolerant.

  3. 3
    acallidryas says:

    Amanda, you asked the question that I was wondering. I’m currently engaged, and my fiance and I don’t fit well into the prescribed roles. I’m much more likely to be argumentative, I’m much more career oriented, my fiance likes to cook and wants to be the one to take care of the kids.

    A couple who are good friends of ours, who are in a long-term relationship, the girl is in law school, and definitely not interested in most “women’s” roles, and her boyfriend likes cooking, cleaning, he even sews. He and my fiance joke about how they’ll be kept men. I just can’t see marriage changing us that much to fit into our assigned gender roles.

    If we have no intention of promoting current gender role ideologies, should the government put a stop to our marriage? For the good of society?

  4. 4
    jstevenson says:

    Amanda, what do you mean by passive? Would you consider Laura Bush passive? I think the “passive wife” has proven to be a detriment to a successful, as an economic unit, partnership.

    Through my experiences most of the men I know don’t have “passive” wives. That must be a Texas thing. Well, I take that back, my brothers wife is not passive. Likewise, passive and active are not antonyms. Many husbands, I would venture to say a good plurality of husbands are active and passive.

  5. 5
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