A Right to Marry? Same-sex Marriage and Constitutional Law
A Right to Marry? Same-sex Marriage and Constitutional Law
A Right to Marry? A Symposium
SAME-SEX MARRIAGE is currently one of the most divisive political issues in America. While several states have legalized it, others–most recently, California–have stripped same-sex couples of their right. “What ought we to hope and work for, as a just future for families in our society?” asks Martha Nussbaum in her essay “A Right to Marry.” Martha Ackelsberg, Stephanie Coontz, and Katha Pollitt respond.
A California couple in June, 2008 (Alex Handy / Creative Commons)
MARRIAGE IS both ubiquitous and central. All across our country, in every region, every social class, every race and ethnicity, every religion or non-religion, people get married. For many if not most people, moreover, marriage is not a trivial matter. It is a key to the pursuit of happiness, something people aspire to—and keep aspiring to, again and again, even when their experience has been far from happy. To be told “You cannot get married” is thus to be excluded from one of the defining rituals of the American life cycle.
The keys to the kingdom of the married might have been held only by private citizens—religious bodies and their leaders, families, other parts of civil society. So it has been in many societies throughout history. In the United States, however, as in most modern nations, government holds those keys. Even if people have been married by their church or religious group, they are not married in the sense that really counts for social and political purposes unless they have been granted a marriage license by the state. Unlike private actors, however, the state doesn’t have complete freedom to decide who may and may not marry. The state’s involvement raises fundamental issues about equality of political and civic standing.
MARTHA NUSSBAUM has written a clear and compelling argument for the position that “government cannot exclude any group of citizens from the civil benefits or the expressive dignities of marriage without a compelling public interest.” In carefully dissecting and deconstructing both what marriage is (and is not) in the contemporary US and the arguments against same-sex marriage, she effectively demolishes the case against same-sex marriage and argues that, if government offers a package of benefits that goes under the name of marriage, it cannot rightly exclude same-sex couples from access to that status and the benefits that accompany it. In the wake of the California Supreme Court decision about Proposition 8, and the Obama Justice Department’s recent brief in defense of the Defense of Marriage Act, this argument is certainly timely and important. And yet, although the essay is entitled “A Right to Marry?” it does not fully make the case for such a right. Nussbaum notes that marriage is a “public rite of passage, the entry into a privileged civic status” and that there is no legitimate justification for excluding gays and lesbians from that status. On this point, I heartily agree. But she leaves aside a deeper point—one I would like to use this opportunity to raise: should there be such a “privileged civic status” for anyone?
AS NUSSBAUM suggests, there are many logical inconsistencies in the argument that marriage is about encouraging procreation and guaranteeing children the support of both a mother and a father. We do not deny marriage to heterosexuals who cannot or will not reproduce, nor do we any longer forbid divorce, or refuse to recognize the right of unwed mothers to raise children.
But it’s also important to note the historical inaccuracy of the claim that traditional marriage was ever about the protection and procreation of children. Marriage was invented largely to get in-laws, and as soon as societies developed inequalities in wealth and power, forging advantageous marital alliances became a tool for protecting or enhancing a family’s claim to property and political authority. For thousands of years, therefore, parents denied young people the right to freely choose their own mates and organize their own reproduction. Everywhere that marriage was a powerful institution for regulating social life, one of its central props was the equally powerful institution of illegitimacy, which denied many children access to parental protection and societal support.
MARTHA NUSSBAUM lays out the arguments against gay marriage so clearly and refutes them so neatly you wonder how opponents could possibly stick to their guns. But of course plenty will. Religious people do not necessarily agree that their interpretation of Scripture should be ignored in the public square merely because millions read the bible differently or don’t accept it as the last word on modern life. To them, indeed, that’s the problem in a nutshell: all those people rejecting the word of God. Similarly, attributing opposition to same-sex marriage to disgust for homosexuality is not an argument that will persuade those who feel that disgust most keenly. Of course that’s why I object to gay marriage, those people will say. Homosexuality is revolting and gay marriage will only encourage it! As for the slippery slopers, who fear that legalizing gay marriage will lead to legalization of polygamy and incestuous marriage, Nussbaum does nothing to allay their fears. In fact, she seems to suggest that further down the road (when, opponents might say, gay marriage has softened us up), the law may indeed permit plural marriage, as long as it works both ways, at least on paper, as well as marriage between brothers and sisters.
