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Why we're losing the arguments on same-sex marriage

By Phil Lawler (bio - articles ) | Aug 05, 2010

The restriction of marriage licenses to male-female couples, Judge Vaughn Walker tells us, reflects “an irrational classification on the basis of sexual orientation.”

The 7 million California citizens who voted for Proposition 8 presumably thought there was a rational reason to define marriage as a male-female union. But in what has become an increasingly common display of judicial arrogance, Judge Walker substituted his own opinion for the judgment of the people.

To say that the judge’s decision has committed an anti-democratic act by overturning the statewide referendum is to engage in gross understatement. Judge Walker’s judicial ukase does not simply ignore the wishes of today’s California voters; it ignores the accumulated wisdom of countless generations—what Chesterton called the “democracy of the dead”—who understood the nature of marriage in a way that the judge now finds puzzling.

Judge Walker is simply wrong to say that Proposition 8 classified candidates for marriage on the basis of sexual orientation. It is a classification based on sex. The distinction is an important one. When a couple applies for a marriage license, the town clerk does not ask questions about their sexual preferences. A homosexual man is free to marry, as long as he marries a woman; a lesbian woman is free to marry, as long as she marries a man.

There is no legal discrimination here, then. Homosexuals have the same right as heterosexuals to enter into marriages. The question before the court is how marriage should be defined. The people of California gave one answer to that question; Judge Walker gave another.

“Gender no longer forms an essential part of marriage,” Judge Walker asserts, and by his decision he seeks to make it so. But he offers no logical support for that bald assertion.

The words “no longer” in the judge’s sentence are suggestive. Was there a time when gender was an essential part of marriage, but now that time has passed? If so, what has changed? Has there been some fundamental change in human nature? Or some fundamental change in our understanding of marriage?

There is, unfortunately, a gaping hole in the arguments that have been advanced by many supporters of traditional marriage. There has been a fundamental change in the popular understanding of marriage: the widespread acceptance of contraception.

Over the course of human history, every civilized state has given special legal privileges to the institution of marriage. Why? Because every society has recognized the importance of rearing children, and realized that marriage—the union of a man and a woman—is the means by which children are begotten and raised.

But in less than the span of a lifetime, that recognition—which has stood the tests of logic and of history for thousands of years—has disappeared. With the routine use of contraception having severed the link between marital love and procreation—and virtually every institution but the Catholic Church mistaking this perversion for a good—marriage has come to be seen in a very different light. A couple entering into marriage may or may not plan to have children. The presumption of fecundity has been lost. Marriage is widely seen as simply a union between two loving partners. Healthy young couples, to all appearances happy in their marriages, speak openly about “someday” beginning a family—thereby implying that the family did not begin when they exchanged vows. A marriage is seen as a union of two people; the age-old recognition that “baby makes three” is now missing. Child-bearing has become an afterthought: something added on, something inessential.

But if marriage is no more than a loving partnership, why should it be restricted to partners of opposite sex? Defenders of marriage are forced to rely on weaker arguments. Do they invoke the authority of tradition? Progressives are anxious to dismiss it. Do they worry over the welfare of children? Social scientists are eager to provide studies suggesting that same-sex couples are equally good parents. Do they cite the command of the Almighty? Secularists insist that religious beliefs have no place in public debate. Do they note that acceptance of same-sex marriage could lead to acceptance of other heretofore illicit relationships: 3-way unions, incest, even bestiality? Homosexuals denounce them for employing “scare tactics,” and sympathetic voices in the media laugh off such concerns as absurd. It is noteworthy that two governors of California declined to offer a vigorous defense of their state’s law; they recognized the weakness of the rhetorical positions they would be forced to advance.

Several years ago I engaged in a friendly debate with a good friend, a Jesuit priest, about the persuasiveness of various arguments against same-sex marriage. Our email exchange found its way to other readers, who suggested that it should be made available to the general public. So it was that the exchange, reproduced here, was published in the July 2003 issue of Catholic World Report. The essential arguments have not changed.

Why Not Gay Marriage? An Exchange

MESSAGE #1: FATHER PAUL TO PHIL

The same-sex marriage proposal is a scam. Here's why.

A) Eric is married to Kate. Their marriage provides the state with many significant benefits.

1) They produce in their children the next generation of citizens.

2) They provide a very great part of the education and socialization of their children, teaching them to communicate, to cooperate with others, to do their fair share of the common toil, to restrain their appetites in service of a common good. Most of the values that incline citizens to contribute to society (and to act so as to stay out of jail) are learned in the home and inculcated and reinforced by parents and siblings.

3) When the young behave in harmful ways, most of the needed disciplinary correction will be meted out by their families--and the more stable the family, the more effective the correction is likely to be.

4) Eric and Kate are interested in the welfare not only of their children but of their children's children, and consequently have a vested interest in the long-term prosperity of the state (and neighborhood), and inculcate the same sense of responsibility in their children.

The state can, in unusual circumstances, provide or attempt to provide benefits 2, 3, and 4. The state will almost never succeed in providing them as well as an average family, and the expense involved will always be grotesquely disproportionate to the effect, as compared to the same benefit provided in the context of married family life. Because Eric and Kate make sacrifices in order to stay married and raise a family (sacrifices involving career choices, education and health expenditures, etc.), the state traditionally acknowledges the benefits provided by partially compensating Eric and Kate in legally "privileging" their marriage: recognizing the marriage as a civil reality, making it difficult to dissolve, penalizing polygamy (whether serial or concurrent), protecting property by inheritance law, and so forth.

B) Greg and Charlie graduated from college together and both have entry-level jobs in business. They are friends, and room together to cut expenses by sharing rent and utilities, and because they enjoy each other's company. Their main interests are in providing economic prosperity and security for themselves and in pursuing their own amusement. Their conjunction, in and of itself, provides no benefit whatever to the common good; each individually makes contributions as a working and tax-paying citizen, but each would make the same contribution if he lived alone.

C) Dave and Jason live in the apartment below Greg and Charlie. They graduated from college together and both have entry-level jobs in business. Their main interests are in providing economic prosperity and security for themselves and in pursuing their own amusement. Each individually makes contributions as a working and tax-paying citizen, but each would make the same contribution if he lived alone. Dave regularly sodomizes Jason. The principal reason they share the domicile is to facilitate this conjunction.

Question: what good does the conjunction of Dave and Jason provide the state that the conjunction of Greg and Charlie does not? How do we, their fellow citizens, benefit from their partnership? In what sense is their relationship productive of the common good such that the state would want to assimilate it to the marriage of Eric and Kate? Keeping in the mind that the recreative appetites of Greg and Charlie were not specified--and so may be heterosexual or homosexual or some combination thereof--what is it that we, the citizenry, stand to gain by the fact that Jason is sodomized by his roommate? Or, if this picture is seen as too reductionist, what public, civilly verifiable fact about Dave and Jason's relationship makes it a "same-sex partnership" in a way that distinguishes it from the same-sex co-habitation and friendship of Greg and Charlie? What, in short, is the state imagined to be rewarding in granting civil recognition to their partnership?

MESSAGE #2: PHIL TO FATHER PAUL

There are two problems here:

1) You imply that Eric and Kate are engaging in "unprotected" sex, and thus likely to have children. But they might not be; loads of heterosexual couples are not. So your argument starts to wobble a bit right there. Should the state confer a benefit on the grounds that a man and woman might produce children--and recognize that some intentionally childless couples are getting a free ride?

2) At least theoretically, with a little help from modern technology, same-sex couples can now produce babies--or at least bring them home from the hospital--and raise and educate them. Now most homosexuals don't want to do so, and they don't stay together long enough to produce the domestic stability required for child-rearing. But this is one of those cases in which all the enlightened people are trying so very hard to ignore the obvious that you'll have a tough time overcoming their resistance. Folks (and especially folks in the media, where these battles are fought) want to think that Dave and Jason would make great adoptive parents.

This is why I am nearing the conclusion that you have to make the argument that marriage is 1) a natural-law relationship, with rights prior to those of the state, and 2) ordained toward child-rearing. You can't really make argument #1 stick, I don't think, unless you include argument #2. Then if somebody points out that heterosexual couples can engage in childproof sex, you congratulate them for noticing the point we've been trying to make for the past 30 years.

The Catholic Church is ideally situated to make both arguments, #1 and #2. Leave the neoconservative sociologists to make the obvious points about the destructive effects of the homosexual lifestyle. They're right, of course, and should be encouraged. But they'll never get as far as the natural law, and until somebody gets there, we're going to be fighting a rear-guard action.

The general acceptance of contraception cut the legs out from under the natural-law argument regarding legal recognition of marriage. So we're left fighting on prudential grounds: Are homosexuals really likely to be good parents? And it's dangerous to rely on prudential arguments at a time when most people are manifestly imprudent.

So I think we should do our best--acknowledging that it's against long odds--to try to turn the argument around. There still remains a gut-level understanding that homosexual partnerships are not the same as marriages, even if most people would be unable to explain why they feel that way. This might be a "teachable moment;" we might work with that visceral reaction, and try to re-introduce the natural understanding of marriage.

In other words, suppose that Eric and Kate are in the 5th year of their honeymoon, and starting to think that, sometime soon, they might begin "planning" to have a baby. If they're standard-issue solid citizens, reluctant to approve of homosexual marriage, I'd like to tell them that they're right on that issue. Then I'd like to explain why they are right about same-sex marriage, but wrong about their own marriage. And in the process I'd like to ask them how they're different from Dave and Jason, except in their particular sexual appetites. Understand, I don't belittle the significance of that choice. But it is very difficult to build a persuasive public argument on something that is generally perceived as, and treated like, a matter of taste.

MESSAGE #3: FATHER PAUL TO PHIL

I take your point, and you made me realize that I over-determined the Kate and Eric example, but I'm not convinced we're talking about the same kind of rationale or public argument.

You're right that many married couples do not (and indeed choose not to) have children and rear them. As a civil reality, marriage is a potential and not always an actual provider of the benefits that the state intends to reward. But the same is true of any favored institution. Almost all societies at all times have provided "veterans benefits" of some sort--recognizing, I would argue, the necessary role of the military in preserving the community and recognizing the potential sacrifices by the soldiers that are involved. In fact, of course, the huge majority of military personnel in modern warfare never hear a shot fired in anger, and a great many exploit the service for their own purely selfish ends. But they still are accorded benefits as servicemen, and I think the rationale is based on the contribution made and the sacrifice involved in the "typical" case--and here I mean not typical on sociological grounds but more on teleological grounds: typical in this context means the soldier who risks his life for his country, the soldier who does what a soldier is for.

True, most couples contracept. True, most soldiers encounter nothing more dangerous than a moving fan belt. But the state rewards both simply as participants in a particular institution, because that institution serves an honorable purpose. By the same token, a couple that breeds a large family of thieves and murderers and a soldier so grotesquely incompetent that he harms his own unit cause the state more aggregate harm than good, but the existence of neither category of misfits should cast doubt on the honorableness of the institutions of marriage or military service per se or on the reasonableness of the state in privileging them.

A gay couple asking the state for marriage benefits, even if they can point to adoptive children they are raising, would in my view be analogous to a private-sector engineer arguing for veteran's benefits on the grounds that his engineering did more good for the war effort than the soldiering of most soldiers. Even if it is true in fact, it is incidental to the reason why we privilege veterans as veterans.

Let me try another tack. There is a paradoxical sense in which gay marriages have always and everywhere been permitted and protected. Harold Nicholson and Vita Sackville-West were both homosexual, but they married each other and Vita had children. As far as I can tell no state has ever been interested in the concrete details of how the kiddies came to be. There is an important sense in which the state doesn't care whether gays are better or worse parents than straights; it doesn't care about individual appetites but about conformity to an institutional norm, which institution is, as you contend and as almost everyone recognizes, oriented toward the begetting of children. This is why I left the "orientation" of my first male pair an open question. The gay marriage or "same-sex partnership" proposals imply that the gay couple deserve something that the same-sex roommates (gay or straight) don't.

We're in agreement, I think, that the view of marriage as "state consecrated affection between two people" is pernicious and that it gives the gays the Andrew Sullivan Opening. What I'm arguing is that this sentimental view of marriage is unknown to canon law and common law and in fact has no basis at all--logical or legal or historical--in the public reasoning about marriage and its state-guaranteed benefits. Given technological progress and the disposition of the cultural elites, I think Dave and Jason can convince the lawmakers that they could provide the state all the benefits that Eric and Kate can; what they can't do, and this is the point of my argument, is provide a basis for privileging their relationship, per se, over that of Greg and Charlie. Does that help?

MESSAGE #4: PHIL TO FATHER PAUL

OK, I'm with you at least most of the way.

The state has always provided special status for all married couples, fully realizing that some will be infertile, because the norm of marriage implies fecundity. I think your comparison with the military is apt. A soldier qua soldier is involved in combat; a married couple qua married couple is fruitful.

But are we saying, then, that the state makes an implicit teleological judgment about the ends of marriage? Because that's the argument that has been undermined in recent years, I think.

I'm not so sure that "almost everyone recognizes" that marriage is oriented toward the begetting of children. I'm afraid that many if not most people now think of procreation as an option rather than a norm.

More or less as a result, I'm also not sure that most people would agree with you (as I do) that David and Jason will fail to convince lawmakers that their relationship deserves that same privileges as Kate and Eric's. If the privileges attach to their (presumptively optional) status as child-rearers, then why not?

Finally, let me make one more plug for the argument that marriage is prior to the state. Take your analogy with veterans' benefits. There, clearly, the state creates the army, so the state creates the benefits; the government provides a quid pro quo for soldiers. So as an American I have an interest in seeing that US soldiers get adequate benefits. But I don't have much interest in the benefits given to veterans elsewhere. I would think less highly of a government in another country that provided no benefits to veterans, but I wouldn't classify it as a human-rights violation. But I would think that human rights were violated by a country that failed to protect marriage.

MESSAGE #5: FATHER PAUL TO PHIL

You make a lot of good points. With regard to "almost everyone recognizes that marriage is oriented toward the begetting of children," I'm referring to a general intuition, rather than to what folks in a liberal democracy are willing to legislate. I'd agree that most people think married couples should have the legal freedom to remain childless--they would defend voluntary lifelong childlessness as an option--but I still think most people would find it an odd option for a married couple to take. I believe this is still true even in the most ultra-enlightened settings, where sex without children or marriage (and children without marriage or without sex) would be entirely acceptable options. An unmarried member of the Harvard faculty could decide to have a baby from purchased semen and it would cause no more comment than buying a house on Cape Cod. Married or unmarried, her colleagues would expect her to remain childless until her career was established. But if she were tenured and prosperous and had made her name and then were to marry, I think even her hyper-feminist friends would wonder, if no child was forthcoming, whether they should tactfully offer sympathy for infertility problems.

Regarding the priority of the family to the state--that is, your point that the state exists precisely in order to safeguard more fundamental institutions--of course I agree, but the problem is this: how does one frame an argument within the terms of the self-understanding of a modern liberal democracy? The stance I'm assuming is (for rhetorical purposes) not that of a Catholic churchman but of a citizen addressing a liberal state on its own ground. At the slightest whiff of "sectarian" reasoning (which, absurdly, now includes natural-law reasoning), a politician will let himself off the hook with the plea, "My duty is to serve the interests of the state as the state understands itself, not the interests of the state as the Church understands them to be." That's why I'm trying to float the argument in terms of the state's reflexive interests instead of the state's teleology. It's a deliberately dumber approach.

Another analogy: Imagine that the Vatican were expanded into a real state populated entirely by perfectly chaste celibate clergymen, some of whom adopted boys from other countries and raised them to become Vatican clergymen-citizens. This hypothetical Vatican state might acknowledge that Father A performs a "public" service by adopting a future citizen, and therefore give him a break on rent, and other privileges. But suppose Father A lives with Father B and both adopt a child. What added interest is there in this arrangement; what does their conjunction provide that each does not provide individually? For that matter, why not Fathers A and B and C in a three-way menage? What I'm getting at is that this "twoness," this "couple," formed by A+B means nothing. It has no meaning and yields no benefit to the state not already achieved by one individual and not achieved by five: you can add same-sex parents indefinitely and never get more than the sum of the parts.

Now advocates of same-sex marriages are pretending and asking us to pretend, that a traditional marriage is a partnership of a man and woman who serve the state in identical ways (including functioning as child-rearers), such that a same-sex partnership can be wholly assimilated to the arrangement. But in the formulas "same-sex couple" and "married couple" the word "couple" has a different meaning, and to assimilate one to the other is to switch horses (semantically) in mid-stream. You are absolutely right that contracepting couples facilitate this sleight of hand by making plausible the claim that marriage is a cohabitation of sexual partners, but even in ultra-liberal states, and even where a couple has only adopted children, in the event of a divorce the courts will overwhelmingly favor custody by the female partner; a true couple is more than a pair, even when sexual engendering is not relevant. What would same-sex advocates ask the courts to do in the event Dave and Jason get divorced, grant custody of the children to the passive sexual partner? Alternatively, if Dave and Jason should add Ricky to their menage, is there any reason why a state that privileges the conjunction of the first two cannot extend the privilege to the troika, the foursome, and so on ad infinitum?

My contention is that unless the state conceives itself as an engine existing precisely to destroy traditional married family life, it must admit on its own terms that same-sex partnerships can, at best, plead for tolerance--and this on purely procedural grounds, without reference to the teleology of the state.

MESSAGE #5: PHIL TO FATHER PAUL

We're getting there. But I really don't know about the hypothetical professor who gets married but doesn't get pregnant. Yes, certainly her colleagues would eventually start to wonder, especially as the biological clock became a factor. But if she just announced that she and hubby had decided not to have kids, I don't think anyone would bat an eye.

That said, I do think you're onto something regarding the interests of the state. There are lots of very nice single people who would probably be very good at child-rearing, even working by themselves. And as you point out (in fact you could make the argument more emphatically), if 2 gays make for a tidy household in which to raise a child, wouldn't 3 or 4 make things even dandier? There's nothing inherent in the 2-man scheme that serves the public weal.

The danger in that argument, however, is that it might encourage some people to begin questioning why there are special privileges accorded to marriage, since (they'll say) we no longer require normal sexual intercourse in order to achieve reproduction. That would be in keeping with the long-term goal on the gay agenda: not to achieve equal marital status for gay couples, but to abolish marriage as a legal institution.

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Show 6 Comments? (Hidden)Hide Comments
  • Posted by: jtuturic3013 - Aug. 09, 2010 9:33 PM ET USA

    Following up on some of the comments to this article, I'll go even further and say that the reason why we are losing the war on life, both in and outside the Church, is because of bad fathers. What does a good father do? He protects, provides and generates life. What has gone on the last 40-50+ years? Far too many bishops, priests and fathers of families have conceded to sin, just like Satan, by not serving the least in favor of the self.

  • Posted by: mae - Aug. 09, 2010 7:26 AM ET USA

    Even though normal sexual intercourse in no longer required to achieve reproduction, could this fact really leave room to question special privileges accorded to marriage? Only, I think, if children are considered property or commodities. Not if children have the right to experience their biological parents as their actual parents. It might be better not to concede in any way the intentional orphaning of children (i.e. use of donor gametes) as relevant to the debate.

  • Posted by: bkmajer3729 - Aug. 08, 2010 11:32 AM ET USA

    The situation manifests yet another example of the importance of Faith in real peoples lives. To the real people, God matters and makes a difference. Unfortunately, there are too many in positions of power where God is no longer relevant to them; Faith doesn't matter to them - in so many ways. I dare say this is the situation even within our beloved Church. Please continue to pray that Christ's Light and God's grace will illumine hearts and minds sooner rather than later.

  • Posted by: Frodo1945 - Aug. 06, 2010 8:38 PM ET USA

    You put the church on the high ground of opposing contraception. It may be on the high ground, but if it looks around, only 4% of its couples of child bearing age are standing with it, the other 96% contracept in some manner. The church lost this battle first in its own back yard, now the chickens are coming home to roost in the whole nation. The almost wholesale rejection of Humanae Vitae started the ball rolling.

  • Posted by: John J Plick - Aug. 06, 2010 11:18 AM ET USA

    Because, simply, the Bishops ARE NOT PRO-ACTIVE. In the "Tom Clancey" Novel "Red Tide Rising" one of the characters complains, "If we keep letting the enemy get us to fight this war on his terms we are going to lose it!" For the most part the Bishops (and we ourselves, the laity) are "reacting...," and that, simply put, is why we are "losing."

  • Posted by: Cornelius - Aug. 06, 2010 9:34 AM ET USA

    I don't think we're "losing arguments on same-sex marriage" - every time this is put to a vote Americans vote to enshrine true marriage in law. Thus far, it's one critically placed liberal activist judge we've failed to persuade. Surprise, surprise.

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