The post below is a continuation of a comment made to a three year-old post, belonging to my good friend at the Lawodyssey blog. In any case, the best stories often start in the middle, I have read.
In response to the thorny questions that arise during the gay marriage debates, a libertarian solution is sometimes put forward that marriage should be private, or left to society, and government should not license marriages. As Lawodyssey put it, this might be a way to cut this particular “Gordian Knot.” My question is if this is possible, even hypothetically, if not practically. And far from representing a neutral and classically liberal solution, is it in fact a normative stance in itself. The relationship of husband/wife has a rich and robust heritage in our legal system, and the common law antedates any of our positive law (I assume) in this regard. Would this all disappear, and how would cases by handled? All sorts of cases regarding property, taxes, inheritance, children, legal testimony, etc. would be affected. Take also a simple case of next-of-kin. Typically one’s spouse is, by default, one’s next of kin. Imagine the following example: A 45-year old married man with three minor children was himself an only child, and has parents who are deceased (relatively pre-maturely, but certainly not unimaginable). He is involved in some horrific motor vehicle accident, and the state trooper and hospital attempt to notify his next-of-kin. Under current law this is his wife. If the law does not recognize marriage in any sense, then this would be his closest living blood relative of adult age (aunt, uncle, cousin, etc.). This is clearly both normative (the state and law making a decision that his second degree relative is closer to him and more important than his wife) and nonsensical. The only legal solution would be to draft a medical power of attorney naming one’s spouse, or to invent a new legal definition for spouse, called something else. But we already have this name: husband/wife. We have an ancient word for the surviving spouse: widow/widower. We have no such word for the surviving cousin, let alone brother/sister and for good reason. But to call a husband/wife something else would just be to take our current risible taste for calling secretaries “administrative assistants,” and waiters “servers,” to an Orwellian level. It seems, then, self-evident from the viewpoint of the traditional legal and commonsense understanding that marriage is the one relationship between non-relatives that supersedes all other relationships between relatives, i.e. to state the obvious: it is the conjugal union between “non-blood relatives” that creates “blood relatives”. Marriage is the origin of the family.
If one concedes that there is difficulty divorcing marriage from the law, then one must actually pivot to think further about marriage, it seems to me.
I realize that there has emerged a new, current consensus, more or less, on gay marriage, held by many educated and sophisticated people. The “strawman” simplistic version of this involves an argument that chalks up prior views on homosexuality (let alone the heretofore foreign notion of gay marriage) to simple unenlightened bigotry, along the lines of past views about religion or race. Careful reflection for more than half a minute, however, suggests that black: white or Jew: Protestant and homosexual: heterosexual are not even rough analogies, by any logical analysis. The stronger argument runs something like: Some small but significant % of the population is homosexual; it is a disposition that they share with other consenting adults (i.e. there is no force or fraud), and as such there need not be any shame in this, nor prosecution, nor persecution. Moreover, these are very often good, productive, caring people, who ought to be treated the same in all regards as their more numerous heterosexual brothers, sisters, and neighbors. One of the hallmarks of a legitimate liberal democracy is the protection of the rights of minorities, after all. And for homosexuals in long-term relationships that desire to be married under the law – with all that this entails - how can one rightfully and fairly deny this? How can one deny homosexual marriage without “denying” homosexuality itself?
However, Lawodyssey also implied in his original post that marriage exists chronologically and ontologically prior to the state, prior to the law. How do we take something that exists by nature, then, and profoundly amend the traditional, or common-sense understanding of it without first presenting an argument about that traditional understanding, including how and why it is either a flawed or incomplete, based on our new knowledge?
Like all of human nature, marriage exists in a variety of forms, but not infinite forms. There is cultural variation within those natural boundaries, and individual variation bounded generally by both the cultural norms, and by human nature.
A cursory review of human history would suggest that certainly, for instance, marriage is not just a custom of Jews, Christians, and Muslims. A few observed patterns and examples that exist across time and place, that illustrate the nature of marriage, may be helpful: 1) Men are jealous 2) Women are selective. 3) Husband/Wife double as – become - Father/Mother. 4) Young, fertile women are coveted. In ancient times and foreign places men were sometimes killed so that women could be stolen as wives. While this was not the standard means of obtaining a wife, even in such times and places, in no time or place did women physically capture men to take as their husbands. 5) Monogamy is very common, and in certain places and times polygamy is found. This polygamy is, however, without exception one husband and multiple wives, never the other way around. 6) Never are incestuous marriages condoned. One could continue with more examples of what is known historically and anthropologically.
Now the Aristotlean might also go so far as to say that the best form of marriage is that which is best by nature – i.e. most likely to create happiness and flourishing for husband, wfe, and children. Prudence, however, would show that this would vary also by culture – but not infinitely so. I will leave these thoughts aside, for the moment, about better and worse marriage.
It quickly becomes clear, then, that any careful discussion about both the nature of marriage and about the traditional commonsense (and legal) understanding of marriage seems to not only include the love of the husband and wife, but also to point beyond the mere courtship and the erotic or romantic love to its natural end: the family – to biology, to flourishing, to procreation and the rearing of children (the “being of being” for a people, if one excuses the Greek). If this fuller understanding is indeed marriage, what then, exactly, is gay marriage? How do we think about it other than as some imprecise comparison – similar in some superficial regards, but fundamentally different in all others? Does it matter? In what way is the traditional view of the nature of marriage inadequate or incomplete by leaving out this new concept? How is our view of marriage improved by adding a version that includes gay marriage? Is this new concept true knowledge about reality? Can it be just without representing a better understanding? On what basis?
I have done my best, to briefly make both cases. On which side does one place the burden for making the stronger argument? Is there a compromise?