2003-08-27 - The Commentator - Res Publica: A Case For Gay Marriage

Res Publica: A Case For Gay Marriage

By Jason Koslowe

August 27, 2003

For at least this leg of the race, the torch in the culture wars passed, runners seemingly midstream, from abortion to gay marriage. With politicians and priests lining up for the new litmus test, opinion mongers and policy makers scurry nervously about attempting to feel the pulse of the nation on this ever-so-fresh, brightly burning controversy.

Data in the months leading up to the June 2003 Goodridge Supreme Court decision that struck down a Texas law prohibiting sodomy as deviant sexual activity found most Americans in agreeance with the court's reasoning, namely that sex between consenting adults is a private matter. "The petitioners are entitled to respect for their private lives," Justice Anthony Kennedy wrote for the court's majority. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime." Yet a Gallup poll released last month showed a dramatic drop in support for gay civil unions - from 49 percent opposed in May to 57 percent in July. Did the Goodridge decision shock the country's socially conservative undercurrent into the open, or does America simply have cold feet about gay marriage? As proponents and opponents continue to tug and pull at American public opinion, I find myself asking, what is this debate really about?

"In a secular democracy, this is a legal question, not a religious question," said Tony Kushner, a Pulitzer prize winning playwright and leader in America's gay rights movement. By portraying marriage as a legal formality that structures a relationship between two people and the state, regulating certain ramifications of an enduring interpersonal partnership - such as asset sharing, Social Security payments, and power of attorney, proponents of gay marriage expose the inequality of a system that denies certain life partnerships the same benefits it confers on others solely on the basis of sexual preference.

This argument reads the law as a description of reality - quit confusing legal sanction with moral sanctimony: many homosexuals in contemporary America live their lives together as spouses, the state should thus allow them to file taxes jointly and make life and death decisions together without the indignity of having to beg permission from estranged relatives.

But this legal positivism disregards the law's proscriptive power. Take, for example, the equally contentious topic of affirmative action. The logic behind that set of legislation - that the law can force change in society - expects the law not just to illustrate and categorize the 'situation on the ground,' but to mold and shape it. We create law to affect reality. When it comes to marriage, the highest court in Ontario, Canada, in a recent ruling legalizing gay marriages, takes this tack in support of same-sex unions: "Marriage is, whithout dispute, on of the most significant forms of personal relationships... Through the institution of marriage, individuals can publicly express their love and commitment to each other. Through this institution, society publicly recognizes expressions of love and commitment between individuals, granting them respect and legitimacy as a couple."

Government thus offer the legal category of marriage to assist in the creation of important interpersonal relationships that benefit those individuals involved in them. Gay couples in this country would benefit as much as do their heterosexual neighbors from a public sanctioning of their love for one another.

But Marriage is about more than love and commitment between individuals; it is larger than any two people engaged in a loving union; as an institution, marrigage bounds and sustains the building blocks of society: families. According to Maggie Gallagher, co-author of The Case for Marriage, "Marriage is the fundamental, cross-cultural institution for bridging the male-female divide so that children have loving, committed mothers and father." Regardless of the Hollywood-inspired romantic ideal, marriage is about family structure. Governments endorse marriage as the primary means of making families. "Same-sex marriage," she concludes, "would enshrine in law a public judgement that the desire of adults for families of choice outweighs the need of children for mothers and fathers."

Not so clear. Although a bevy of current sociological and psychological research projects have shown that family structure matters for children, and that a family headed by two biological parents helps children the most in the long run, such studies compare the traditional heterosexual household with the traditional divorce, the traditional single parent home, the traditional remarriage, and the traditional family situation for children born out of wedlock.

Only bias (or a completely unfounded set of assumptions about how homosexual parents approach their parenting) would have us assume that children raised by two loving homosexual mothers or fathers would fare worse than their peers raised by a pair of heterosexual parents. In a country where more than 60 percent of all marriages end in divorce or separation and over three-quarters of inner-city children do not live with a parir of married biological parents, allowing gay couples to marry and adopt ought not shatter the foundation of marriage as an institution in America - as the conservative argument goes - but should rather create more stable families within which children would grow and flourish.

This is all, of course, to overlook the proverbial pink elephant in the room: the moral issue. Most opponents of gay marriage refuse to acknowledge the most logically consistent approach to their position: if a citizen in a democracy finds homosexuality, and by extension same-sex unions, morally repugnant, they have every right (and perhaps even the moral obligation) to enshrine their beliefs in law by convincing their fellow citizens to outlaw gay sex and marriage. For many Americans who believe in the divinity of the Bible, the discussion begins and ends with Leviticus 18:22; there's no honest way to re-read "abomination" out of that verse.

Liberals often counter this line of reasoning of brandishing the notion of moral neutrality in the law. "Of course," explains Robert George in The Clash of Orthodoxies, "the claim that the law ought to be morally neutral about marriage or anything else is itself a moral claim" - a claim based on a foundational assumption, in this case, that the law ought to be morally neutral. We have no reason to assume that the majority of the people in a democracy ought not inject their moral values into their law.

Yet I find myself most comfortable advocating the most pluralistic form of law possible - in this case, that which would allow for same-sex unions. Not because I myself abjure from taking moral positions, but precisely because my system of normative values does not coincide with the majority of my fellow citizens'. Most Americans, to make an obvious understatement, do not follow Halacha. What would happen should they find a tenant of my belief offensive?

Don't forget that the First Amendment my religious practices so long as they do not offend society (think polygamy and the Mormon's, among other examples, if you don't follow the reference). Where the government can opt out of a moral discussion by leaving decisions up to private individuals - in cases where individuals decisions do not adversly impact society, it should. Gay marriage is such a case.