I first became aware of the political question of same-sex marriage in 1980. I was in fifth grade and we were supposed to conduct debates in class about issues of the day. I was assigned to the group opposing this proposition: “The Equal Rights Amendment should be passed.” Researching for my part in the debate, I found an argument that the plain wording of the proposed amendment (“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”) would grant men the right to marry other men and women the right to marry other women. This was in the context of an article opposing the amendment.
At first I was excited to find this claim. Up to that point all that I had been able to find were dry legal arguments that would never capture the attention of my classmates. Here at last was a point that would grab the imaginations of everyone in the room and hold them for as long as I needed.
But as I thought it over, I realized that there was an obvious question that would stump me if anyone asked it. Why shouldn’t same sex couples be free to marry? The only argument in the article was that same sex couples couldn’t reproduce. My immediate response to that was to think of my grandmother. When my grandfather died, she was in her fifties, most assuredly past childbearing. Yet she remarried, and no one thought to object. So why was the sterility of same sex couples a reason why they should not be allowed to marry?
In the decades since, I’ve kept an eye on the debate. I’ve found some very sensible arguments supporting the right of same sex couples to marry, and some intriguing arguments to the effect that no one should marry. But what I have not found are many substantive arguments in favor of reserving marriage for heterosexual couples. This is quite surprising. One would assume that by now someone would have come up with a worthwhile argument in favor of the status quo.
In this issue of Chronicles, Thomas Fleming explains why he is opposed to same sex marriage. He begins by describing a discussion between Governor Mike Huckabee and Jon Stewart on The Daily Show. Huckabee cited the Old Testament’s definition of marriage as necessary heterosexual. Stewart replied that the Old Testament conceives of marriage quite differently than do contemporary societies, for example allowing polygamy and assuming that households will own slaves. Fleming summarizes this conversation thus: “Governor Huckabee was slaughtered by the host of The Daily Show. He refused to confront honestly either polygamy or slavery… Huckabee had, after all, subscribed to the liberal notion that ‘all people are created equal,’ and now he was restricting the equal rights of homosexuals. When he could only defend his position by citing the law, Stewart quite appropriately asked, “What if we make it that Hispanics can’t vote?”
Fleming agrees with Stewart that marriage as it is conceived in the USA now is something that might as well be opened to same sex couples. What Fleming opposes is that current conception. Fleming’s view is complex, and at odds with mine. I can be fair to Fleming only if I quote him at length:
In the marriage debate, the champions on each side make fundamental mistakes that corrupt the discussion and make it impossible to begin the process of defending marriage. It is easy to spot the errors of the left, both the Marxist left and the libertarian left: They hate marriage as it has existed throughout our history and would replace it with a voluntary ad hoc attachment that can be entered or abandoned with ease. For them, marriage is no longer a serious contract, as liberals once wanted it to be, but only the sort of paperwork a tourist fills out when he is renting a car. Naturally, he agrees to take out certain insurance, pay traffic tickets, and be held liable for damages. Beyond that, he only expects to drive the car– or bed the woman– for a limited time. For them the purpose of marriage is (as Jon Stewart and his ‘gay’ friends might argue) mutual affection within a stable relationship.
Conservatives, although they are right in their instinctive reverence for the institution, typically make the mistake of accepting the old liberal view of marriage, which made it a contract between individuals that is enforced by the state. As a result, they concentrate their efforts on beefing up state regulation of marriage and divorce– as if governments had not already done enough damage– and, by forever speaking of marriage as made between two individuals, they can never entirely escape the liberal-libertarian trap. If a man and a woman can enter freely into a contract, why can they not, by mutual consent, find an exit? In forever speaking of marriage as a human right– and, to use Governor Huckabee’s first-grade syntax, “a one man one woman life relationship” formed by two individuals– they will always have to fall back on law or prejudice as their ultimate defense of normal marriage.
The fundamental problem reveals itself in the vague language, a distant echo of Rousseau and Marx, used to defend traditional marriage. By “life relationship,” did Huckabee mean an unbreakable bond throughout their lives or merely a relationship to enjoy life together?
It is as obvious to Fleming as it is to those of us who support same sex marriage that a same sex couple can display “mutual affection within a stable relationship,” and that such a couple is perfectly capable of “a relationship to enjoy life together.” So, grant that either of these definitions is an adequate description of the purpose of marriage, and same sex couples will be entitled to participate in it.
Of course, Fleming does not grant this. His view is radically different. First, he points out that the definition of marriage as a “one man one woman life relationship” is rather peculiar in historical terms. It goes back only to the Enlightenment and is by no means universally accepted in today’s world. “[T]here is every reason in the world why [Christians] should reject the Enlightenment’s redefinition of marriage as a relationship between a man and a woman who wish to enjoy life together.” If it was only in the eighteenth century that Europeans began to regard marriage as a relationship between the spouses, between whom did earlier generations regard it as a relationship?
In any free society, households can only be independent if, first, they are embedded in a wider network of kin and clan, whose members will aid them, and, second, if they possess sufficient property to maintain their existence and keep from falling into dependency, either on the rich and powerful or on the government. This link between marriage and property endured, for the responsible classes, down to the end of the nineteenth century. Men often put off marriage until they were sufficiently well fixed to be able to provide a home and necessities for their future family.
In the twentieth century, however, governments… made it possible to buy a house on easy terms– and at perhaps three times the price. We no longer have to take care of our children or provide for their education, and we no longer expect our children to take care of us in old age. The lord– that is, the government– will provide.
So, Fleming’s criterion of marriage is to be found in extended family systems. For him, the purpose of marriage is to situate a household within “a wider network of kin and clan, whose members will aid them” and to ensure that the household will “possess sufficient property to maintain their existence and keep from falling into dependency.” Marriages formed as the result of romance and dissoluble by easy divorce can hardly be expected to create and maintain such networks or to regulate the accumulation of property as effectively as can the barely dissoluble arranged marriages of premodern Europe. Fleming might also have cited such nonindustrialized contemporary countries as Afghanistan, which seem to closer to qualifying as “free societies” by his definition than do states under capitalism. What are the political implications of the sort of family relationship Fleming favors?
The ancient conception of marriage and family– from Aristotle, Cicero, Thomas, Dante, and Althusius– as the foundation of the social order means exactly the opposite of what Huckabee and Stewart would like it to mean. The family constructs the lower orders of society, which in turn construct the state; therefore, no legitimate state, whether a republic or a monarchy, will strip the province, village, or family of their traditional prerogatives. A healthy society may, indeed, pass laws, good and bad, to confirm the family forms that have been inherited from earlier generations, but it will never innovate, for example by liberalizing divorce or legalizing same-sex marriage.
Now at last we’re getting somewhere. Fleming opposes same-sex marriage because it is incompatible with his belief that we ought to recreate social and economic conditions that existed in the preindustrial world. I can see why Fleming believes that a society composed of independent households “embedded in a wider network of kin and clan, whose members will aid them” is more compatible with the dignity of the human person than is a society composed of atomized individuals subject to the demands of the market and the will of the State. I don’t as a matter of fact agree with him- I suspect that life within one of the patriarchal households he wants to reestablish would be pretty stifling. After all, there must be a reason why so many people have chosen to seek their fortunes in towns far from home since the outset of the Industrial Revolution. But I can see his point.
What I don’t see is how he can call his position conservative. The view of marriage that emerged in the Enlightenment may have been radical in its day, but it accorded very well with the needs of the economic system that was rising at the time. Households can hardly be independent when they make their livings, not from land they own and work together, but from jobs they hold at the pleasure of employers. Extended family networks can hardly exist where the majority of the population makes its living as participants in a labor market which rewards those who relocate frequently and penalizes those who are willing to move only short distances from their ancestral home. Fleming seems to suggest that we in the West should scrap, not only the last three hundred years of thought about what marriage is, but the last three hundred years of economic and social development.
To call for a return to an earlier form of society is in fact to call for revolution. If the USA were to scrap industrialization and the concepts of family that go with it, we would be carrying out the most extreme disruption of society imaginable. If undertaken in a spirit devoid of Fleming’s evident compassion and urbanity, such an effort might easily replicate the horrors the Khmer Rouge inflicted on Cambodia. Surely the conservative approach, the approach that would “confirm the family forms that have been inherited from earlier generations,” is precisely to legalize same sex marriage.
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