I am struck again and again about how well-intentioned acts have unintended consequences. Sometimes the act “was worth it” despite the consequence; sometimes not.
Redefining so fundamental an institution as marriage should be preceded by a lot of hard thinking about the consequences, and the burden of proof should be set quite high. So far, the hard thinking has mostly been replaced by the equivalent of “Oh, what the hell – why not?” or question-begging slogans like “marriage equality” (the begged question being “what is marriage?”)
There’s no miracle cure for insouciance or sentimentality, but some people are just so busy that they don’t have time to think things through on their own. I’ve thought about the issues a lot, but I’ve been aware that time constraints (if not the constraint of waning cognition) have left me short of the clarity I wanted.
Fortunately, some people really have given this a lot of thought. I’ve been tutored a lot lately by people who’ve either come at it from the somewhat abstract direction of natural law or who have broken out of that mold and just considered practical consequences carefully. But none of the arguments are, so far as anyone has convinced me thus far, compelling in any 5-second sound bite format. Apprehending them, let alone comprehending them, takes sustained attention that’s rare these days.
To start with, when the characterization “redefining marriage” is uttered, I’ve come to realize that many people hear it as something like this:
I have a deep and irrational hatred of gay men and lesbians, but I recognize that such hatred is socially unacceptable. So I’m going to gussy it up with some pseudo-principles and imaginary history.
(Convention requires that I now deny hatred: I do deny it, and that’s all I’m going to say. This isn’t about me.)
I can illustrate, from recent essays by Robin Phillips why “redefining” is quite an appropriate term (along the way hinting at some baneful consequences of the redefinition). The fundamental redefinition involves eliminating the element of consummation from the concept of a real (i.e., complete) marriage:
It is interesting … that in the literature of the gay and lesbian community, the specifically sexual dimensions of marriage are increasingly being downplayed, and that is why I have argued elsewhere … that same-sex ‘marriage’ carries with it many Gnostic assumptions about the body.
The de-emphasis of the physical dimensions of marriage has resulted in the UK government announcing that the concept of consummation and non-consummation will be inapplicable to ‘marriages’ conducted by homosexuals. When the news surfaced … that the government had decided that both consummation and adultery couldn’t be committed by two people of the same sex, many people puzzled at this, even though it was the logical outworking of the sex-less descriptions of “union” propagated amongst the agitators for gay marriage. You see, once our understanding of “union” in marriage is reduced to “a loving relationship between two committed adults”, then what two people do with their bodies becomes extrinsic rather than intrinsic to that union. But in that case, it is possible, in principle, for gay marriages to occur between two people who are celibate. By contrast, for a heterosexual marriage to be “consummated” (that is, to be a fully complete marriage), there is an act the husband and wife must perform with their bodies. Hang on to that thought, because it has profound ramifications for how we understand the family’s relationship to the state.
In the case of the conjugal view, there is an empirical reality we can point to when establishing whether a relationship is really a marriage, or at least a complete and consummated marriage. Have they had sexual intercourse? But we have seen that there is no corresponding empirical reality that can constitute what it means to be in a marriage regulated by the first definition [“a committed and loving relationship between two consenting adults”]. Indeed, a person might have a “committed and loving relationship” with any number of other persons without it being marriage.
Now precisely because of this, the only way that a committed and loving relationship can be upgraded into marriage is if the state steps in and declares that relationship to be a marriage, in much the same way as the state might declare something to be a corporation or some other legal entity. By contrast, conjugal marriages have and could exist without the state’s recognition because it is fundamentally a pre-political institution. Marriage is pre-political in the sense that it has intrinsic goods attached to it, not least of which is the assurance of patrimony and thus the integrity of inheritance. Such goods do not exist by the state’s fiat even though the state may recognize, regulate or protect them.
An imaginary example should make my meaning clear. If an unmarried man and a woman are shipwrecked on an island together with no one else around, and they decide to be husband and wife, it is meaningful to talk about them getting married and having a family even in the absence of a civil government … By contrast, one cannot say the same about two homosexual men or two homosexual women on an island who decide to get “married”. Without the mechanisms of the state to confer the status of marriage upon two members of the same sex, there are no acts that organically mark the relationship out as being marriage within a state of nature. Indeed, the philosophy behind same-sex marriage is one which makes both marriage and family entirely the construct, and therefore the province, of positive law.
Since consummation is unnecessary for a same-sex union to be called a complete marriage (even putting aside the question of what would count as consummation within a same-sex context), then what determines whether or not a heterosexual marriage is complete? Either we can have two separate non-equal definitions of marriage, or we can realize the logical consequence of same-sex marriage and say that the only thing left to determine what actually makes something a complete marriage or a legitimate family is the law itself.
Why Gay ‘Marriage’ is a Public Threat (part 1 ) (emphasis and hyperlinks in the original)
[P]eople do not understand what a fundamental revision of family law will be required to accommodate gay marriage. For example, in my secular job, I work for the state child support agency, and so deal with questions of paternity and marriage regularly. In our current legal system, the law presumes that any child born within a marriage is the child of the married couple — that presumption can be rebutted with evidence to the contrary, if the husband wish to make that case in court (usually in a divorce), but that is the presumption. When I was born, I did not have a DNA test to prove who my father was, and when my children were born, they did not have a DNA test. We also did not need to go to court to establish that I was the father, because by law, that was presumed to be the case. If you have two lesbians that are married, can we presume that the other woman is the father of the child if their “spouse” has a child? And if they later divorce, and the other spouse wanted to rebut the presumption that they were the parent with DNA (which obviously would not be hard to do), should they be let off the hook when it comes to child support? Does the actual biological father have no rights in such a case? Should such a child have two parents on their birth certificate, or three? These are the kinds of questions that will rewrite our family law if we throw this monkey wrench into the works.
The fact is that if the government gets out of “the marriage business” it will result in the government becoming more involved in our personal lives rather than less, because the government will have to set up new laws and new mechanisms to deal with issues that we have always dealt with by basic principles of family law that automatically come into play when a man and a woman are married.
Fr. John Whiteford, quoted in Why Gay ‘Marriage’ is a Public Threat (part 2). I’m tempted to boil that down, but again, it seems to require sustained argument to make the point as it needs to be made. (Yes, I know that surrogacy and artificial insemination by donor in true marriages present similar issues, but I don’t endorse them, either.)
Once the conjugal pairing gives way to “a loving relationship between … committed adults,” my elliptical omission of “two” is justified because “two” becomes just as arbitrary as “male and female.”
These types of warnings are often objected to on the grounds that it is a fallacious ‘slippery slope argument.’ But as Girgis, Anderson and George remind us …,
“there is nothing wrong with arguing against a policy based on reasonable predictions of unwanted consequences. Such predictions would seem quite reasonable in this case, given that prominent figures suchas feminist icon Gloria Steinem, political activist and author Barbara Ehrenreich, and New York University Law Professor Kenji Yoshino have already demanded … legal recognition of multiple-partner sexual relationships.
I’ve blogged on these issues a lot this Winter-into-Spring, motivate by the extensive discussion surrounding Supreme Court arguments in the U.S. If you’re insouciant or incorrigibly sentimental, you won’t have made it this far. If you have made it this far, I commend to your further attention both of the Robin Phillips essays.
It comes down to this in the end: Whatever goods are served by long-term erotic relationships between two members of the same sex, they are not the goods served by marriage. It’s the demonstration of that that takes time.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)