Thoughts from
San Diego on Law, Politics, and Culture

 
The peculiarity of gay marriage
By Tom Smith

I'm having a hard time deciding what to think about gay marriage. Without having read the opinion, it seems to me the Massachusetts court's decision as reported is pretty weak. It would take constitutional language living, growing and mutating at an impressive clip to require gay marriage under typical equal protection language. Whatever version of originalism you adopt, if the framers of your constitutional language and every one who lived within a couple of decades of them would react with shock, disbelief and horror to your interpretation of their language, chances are good your opinion is more about your opinion than about the text you are supposedly interepreting. But that is old news. Massachusetts Supreme Judicial Court is infested by radical activists, and it's raining in Seattle.

Of course it would be better for the commonwealth of Massachusetts if the state's legislature could sort this out. But that leaves the question, what would you do if you were an assembyperson in Boston? Well, that would depend on whether you were from Brookline or West Waterwheel, that is, upon how well organized the gay lobby was in your district. But what would be the right thing to do, assuming somewhere there is a politician curious to know what that is?

For me it is a hard question partly because we do not live in a world in which it would be an easy question. If we lived in a Nozickian minimal state, or something like it, from the perspective of law, marriage would just be one of probably several long or medium term contracts people could enter into with other people regarding the disposition of property, establishing some agency relations and agreeing on the custody of children. It would be left to private associations such as churches to define marriage as a sacrament that could only be entered into by a man and a woman, was for life, and so forth. If people felt strongly they only wanted to live near other such people, they could move to Our Lady's Town in Utah, or whereever. And I would probably choose to live in one of the more traditionalist suburbs. As I have mentioned before, I think tolerance is philosophically possible and practically desirable.

But, alas, we don't live in such a world. In this world, the state has established something like a church, where the religion is itself. The state asserts a power to define what marriage is legally, and inevitably, morally, or at least with respect to the norms of society. It is precisely because this is the case that gay activists are so keen on having the state recognize gay marriage. If it were just a matter of securing certain legal benefits to themselves, some sort of civil union statute would probably be preferable. Some of the legal baggage of marriage would be avoided. Such a statute could presumably be made more modern and flexible than the ancient law of matrimony. But instead the idea is to acquire for homosexual relations the status that has traditionally been reserved for monogamous, heterosexual relationships. So you see this odd manuever of making libertarian arguments for the bestowing of a legal status that is not founded upon contract. It is anomolous, like somebody insisting they have a constitutional right to be knighted. The prestige of marriage comes from its legal status, not its contractual terms. If it were otherwise, gays would be less keen to be able to marry, and the rest of us would care less whether they could.

Marriage law is ancient and important. A credible argument can be made, and has been, by Harold Berman, that the elevation of marriage to a sacrament entered into voluntarily by a consenting man and woman is the origin or at the origin of the idea of individual human rights in the West. Before the Church imposed this rule, wives were a commodity and their consent to marriage neither necessary or significant.
At the same time, the modern state has done what it does so well, and demeaned the institution entrusted to it. Marriage reform laws such as no-fault divorce seem to have been a disaster for women and children, whom marriage was intended to protect. If marriage is redefined again to include gay marriage, and this further undermines it as an institution, it would only be the latest in the modern state's attack on all institutions save itself.

Institutions have a way of changing people, but they also respond to what people want of them. It is hard to believe that gay couples would want of marriage the same things that straight couples do. I am just guessing, but I suspect gay couples on average would desire more flexible arrangements, easier exit provisions, and other significant differences. Not only gay couples that are like old married couples would want to be married. Couples that are less like what we usually think of as married might well want to be married as well. Open marriage may not work well with straights, but it might with gays, or gay men anyway. Who knows. In any event, it is naive to think new people moving into the neighborhood won't change the neighborhood.

If secular marriage were a more vital institution, I would have more confidence that marriage would change gay culture more than vice versa. But the institution of marriage is not in great shape as it is.
posted by thomas at 11/20/2003 03:14:00 PM