Square Pegs and Round Holes

                                    SAME-SEX MARRIAGE

     Consider the debate over same-sex marriage. Can you decide whether the state should recognize same-sex marriage without entering into moral and religious controversies about the purpose of marriage and the moral status of homosexuality ? Some say yes, and argue for same-sex marriage on liberal, nonjudgmental grounds : whether one personally approves or disapproves of gay and lesbian relationships, individuals should be free to choose their marital partners. To allow heterosexual but not homosexual couples to get married wrongly discriminates against gay men and lesbians, and denies them equality before the law.
   If this argument is a sufficient basis for according state recognition to same-sex marriage, then the issue can be resolved within the bounds of liberal public reason, without recourse to controversial conceptions of the purpose of marriage and the goods it honors. But the case for same-sex marriage can't be made on nonjudgmental grounds.  It depends on a certain conception of the telos of marriage --- its purpose or point.  And, as Aristotle reminds us, to argue about the purpose of a social institution is to argue about the virtues it honors and rewards. The debate over same-sex marriage is fundamentally a debate about whether gay and lesbian unions are worthy of the honor and recognition that, in our society, state - sanctioned marriage confers.  So the underlying moral question is unavoidable. 
   To see why this is so, it is important to bear in mind that a state can take three possible policies toward marriage, not just two.  It can adopt the traditional policy and recognize only marriage between a man and a woman ; or it can do what several states have done, and recognize same-sex marriage in the same way it recognizes marriage between a man and a woman ; or it can decline to recognize marriage of any kind, and leave this role to private associations.
   These three policies can be summarized as follows : 

   1. Recognize only marriage between a man and a woman.

   2. Recognize same-sex and opposite-sex marriages.

   3. Don't recognize marriage of any kind, but leave this role to private associations, which, of course, includes churches. 

   In addition to marriage laws, states can adopt CIVIL UNION OR DOMESTIC PARTNERSHIP LAWS that grant legal protections, inheritance rights, hospital visitation rights, and child custody arrangements to unmarried couples who live together and enter into a legal arrangement.  A number of states have made such arrangements available to gay and lesbian partners. In 2003, Massachusetts, by a ruling of its Supreme Court, became the first state to accord legal recognition to same-sex marriage (policy 2). In 2008, California's Supreme Court also ruled in favor of a right to same-sex marriage, but a few months after the ruling, a majority of the electorate overturned that decision in a statewide ballot initiative. (Lawyer David Boies is handling the constitutional challenge to the initiative. He should win.) In 2009, Vermont became the first state to legalize gay marriage by legislation rather than by judicial ruling. 
   Policy 3 is purely hypothetical, at least in the United States ; no state has thus far renounced the recognition of marriage as a government function. But this policy is nonetheless worth examining, as it sheds light on the arguments for and against same-sex marriage. 
   Policy 3 is the ideal libertarian solution to the marriage debate. It does NOT abolish marriage, but it does abolish marriage as a state-sanctioned institution. It might best be described as the disestablishment of marriage. Just as disestablishing religion means getting rid of an official state church (while allowing churches to exist independent of the state) , disestablishing marriage would mean getting rid of marriage as an official state function.
   The opinion writer Michael Kinsley defends this policy as a way out of what he sees as a hopelessly irresolvable conflict over marriage. Proponents of gay marriage complain that restricting marriage to heterosexuals is a kind of discrimination. Opponents claim that if the state sanctions gay marriage, it goes beyond tolerating homosexuality to endorsing it and giving it "a government stamp of approval." The solution, Kinsley writes, is "to end the institution of government-sanctioned marriage," to "private marriage." Let people get married any way they please, without state sanction or interference : 


      Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want . . . Let couples celebrate their union in any way they choose and consider themselves married whenever they want. . .  And, yes, if three people want to get married, or one person wants to marry herself, and someone else wants to conduct a ceremony and declare them married, let 'em. 


   If marriage were an entirely private affair, " Kinsley reasons, "all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of the government, but neither would straight marriage." Kinsley suggests that domestic partnership laws could deal with the financial, insurance, child support, and inheritance issues that arise when people co-habit and raise children together. He proposes, in effect, to replace all state-sanctioned marriages, gay and straight, with civil unions. 
   From the standpoint of liberal neutrality, Kinsley's proposal has a clear advantage over the two standard alternatives (policies 1 and 2) : it does not require judges or citizens to engage in the moral and religious controversy over the purpose of marriage and the morality of homosexuality. Since the state would no longer confer on any family units the honorific title of marriage, citizens would be able to avoid engaging in debate about the telos of marriage, and whether gays and lesbians can fulfill it. 
   Relatively few people on either side of the same-sex marriage debate have embraced the disestablishment proposal. But it sheds light on what's at stake in the existing debate, and helps us see why both proponents and opponents of same-sex marriage must contend with the substantive moral and religious controversy about the purpose of marriage and the goods that define it. Neither of the two standard positions can be defended within the bounds of liberal public reason.
   
          Here Comes A Discussion of the Opinion of the 
          Massachusetts Supreme Court on Same-Sex 
          Marriage ----'Tis An Interesting Opinion 

 Of course, those who reject same-sex marriage on the grounds that it sanctions sin and dishonors the true meaning of marriage aren't bashful about the fact that they're making a moral or religious claim. But those who defend a right to same-sex marriage often try to rest their claim on neutral grounds, and to avoid passing judgment on the moral meaning of marriage. The attempt to find a nonjudgmental case for same-sex marriage draws heavily on the ideas of nondiscrimination and freedom of choice. But these ideas cannot by themselves justify a right to same-sex marriage. To see why this is so, consider the thoughtful and nuanced opinion written by Margaret Marshall, chief justice of the Massachusetts Supreme Court, in the case of Goodridge v. Dept of Public Health (2003), the same-sex marriage case. 
   Marshall begins by recognizing the deep moral and religious disagreement the subject provokes, and implies that the court will not take sides in this dispute :

       Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. "Our obligation is to define the liberty of all, not to mandate our own moral code. 

   As if to avoid entering into the moral and religious controversy over homosexuality, Marshall describes the moral issue before the court in liberal terms ---as a matter of autonomy and freedom of choice. The exclusion of same-sex couples from marriage is incompatible with "respect for individual autonomy and equality under law," she writes. The liberty of "choosing whether and whom to marry would be hollow" if the state could "foreclose an individual from freely choosing the person with whom to share an exclusive commitment." The issue, Marshall maintains, is not the moral worth of the choice, but the right of the individual to make it ---that is, the right of the plaintiffs "to marry their chosen partner."
   
                       Autonomy and Freedom of Choice --- Insufficient 

    But autonomy and freedom of choice are insufficient to justify a right to same-sex marriage. If government were truly neutral on the moral worth of all voluntary intimate relationships, then the state would have no grounds for  limiting marriage to two persons ; consensual polygamous partnerships would also qualify. In fact, if the state really wanted to be neutral, and respect whatever choices individuals wished to make, it would have to adopt Michael Kinsley's proposal and get out of the business of conferring recognition on any marriages. 
   The real issue in the gay marriage debate is NOT freedom of choice but whether same-sex unions are worthy of honor and recognition by the community---whether they fulfill the PURPOSE of the social institution of marriage. In Aristotle's terms, the issue is the just distribution of offices and honors. It's a matter of social recognition.