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.
Same-sex marriage is currently one of the most divisive political issues in our nation. In November 2008, Californians passed Proposition 8, a referendum that removed the right to marry from same-sex couples who had been granted that right by the courts. This result has been seen by the same-sex community as deeply degrading. More recently, Iowa and Vermont have legalized same-sex marriage, the former through judicial interpretation of the state constitution, the latter through legislation. Analyzing this issue will help us understand what is happening in our country, and where we might go from here.
Before we approach the issue of same-sex marriage, we must define marriage. But marriage, it soon becomes evident, is no single thing. It is plural in both content and meaning. The institution of marriage houses and supports several distinct aspects of human life: sexual relations, friendship and companionship, love, conversation, procreation and child-rearing, mutual responsibility. Marriages can exist without each of these. (We have always granted marriage licenses to sterile people, people too old to have children, irresponsible people, and people incapable of love and friendship. Impotence, lack of interest in sex, and refusal to allow intercourse may count as grounds for divorce, but they don’t preclude marriage.) Marriages can exist even in cases where none of these is present, though such marriages are probably unhappy. Each of these important aspects of human life, in turn, can exist outside of marriage, and they can even exist all together outside of marriage, as is evident from the fact that many unmarried couples live lives of intimacy, friendship, and mutual responsibility, and have and raise children. Nonetheless, when people ask themselves what the content of marriage is, they typically think of this cluster of things.
Nor is the meaning of marriage single. Marriage has, first, a civil rights aspect. Married people get a lot of government benefits that the unmarried usually do not get: favorable treatment in tax, inheritance, and insurance status; immigration rights; rights in adoption and custody; decisional and visitation rights in health care and burial; the spousal privilege exemption when giving testimony in court; and yet others.
Marriage has, second, an expressive aspect. When people get married, they typically make a statement of love and commitment in front of witnesses. Most people who get married view that statement as a very important part of their lives. Being able to make it, and to make it freely (not under duress) is taken to be definitive of adult human freedom. The statement made by the marrying couple is usually seen as involving an answering statement on the part of society: we declare our love and commitment, and society, in response, recognizes and dignifies that commitment.
Marriage has, finally, a religious aspect. For many people, a marriage is not complete unless it has been solemnized by the relevant authorities in their religion, according to the rules of the religion.
Government plays a key role in all three aspects of marriage. It confers and administers benefits. It seems, at least, to operate as an agent of recognition or the granting of dignity. And it forms alliances with religious bodies. Clergy are always among those entitled to perform legally binding marriages. Religions may refuse to marry people who are eligible for state marriage and they may also agree to marry people who are ineligible for state marriage. But much of the officially sanctioned marrying currently done in the United States is done on religious premises by religious personnel. What they are solemnizing (when there is a license granted by the state) is, however, not only a religious ritual, but also a public rite of passage, the entry into a privileged civic status.
To get this privileged treatment under law people do not have to show that they are good people. Convicted felons, divorced parents who fail to pay child support, people with a record of domestic violence or emotional abuse, delinquent taxpayers, drug abusers, rapists, murderers, racists, anti-Semites, other bigots, all can marry if they choose, and indeed are held to have a fundamental constitutional right to do so—so long as they want to marry someone of the opposite sex. Although some religions urge premarital counseling and refuse to marry people who seem ill-prepared for marriage, the state does not turn such people away. The most casual whim may become a marriage with no impediment but for the time it takes to get a license. Nor do people even have to lead a sexual lifestyle of the type the majority prefers in order to get married. Pedophiles, sadists, masochists, sodomites, transsexuals—all can get married by the state, so long as they marry someone of the opposite sex.
Given all this, it seems odd to suggest that in marrying people the state affirmatively expresses its approval or confers dignity. There is indeed something odd about the mixture of casualness and solemnity with which the state behaves as a marrying agent. Nonetheless, it seems to most people that the state, by giving a marriage license, expresses approval, and, by withholding it, disapproval.
WHAT IS the same-sex marriage debate about? It is not about whether same-sex relationships can involve the content of marriage: few would deny that gays and lesbians are capable of friendship, intimacy, “meet and happy conversation,” and mutual responsibility, nor that they can have and raise children (whether their own from a previous marriage, children created within their relationship by surrogacy or artificial insemination, or adopted children). Certainly none would deny that gays and lesbians are capable of sexual intimacy.
Nor is the debate, at least currently, about the civil aspects of marriage: we are moving toward a consensus that same-sex couples and opposite-sex couples ought to enjoy equal civil rights. The leaders of both major political parties appeared to endorse this position during the 2008 presidential campaign, although only a handful of states have legalized civil unions with material privileges equivalent to those of marriage.
Finally, the debate is not about the religious aspects of marriage. Most of the major religions have their own internal debates, frequently heated, over the status of same-sex unions. Some denominations—Unitarian Universalism, the United Church of Christ, and Reform and Conservative Judaism—have endorsed marriage for same-sex couples. Others have taken a friendly position toward these unions. Mainline Protestant denominations are divided on the issue, although some have taken negative positions. American Roman Catholics, both lay and clergy, are divided, although the church hierarchy is strongly opposed. Still other denominations and religions (Southern Baptists, the Church of Jesus Christ of Latter-day Saints) seem to be strongly opposed collectively. There is no single “religious” position on these unions in America today, but the heat of those debates is, typically, denominational; heat does not spill over into the public realm. Under any state of the law, religions would be free to marry or not marry same-sex couples.
The public debate, instead, is primarily about the expressive aspects of marriage. It is here that the difference between civil unions and marriage resides, and it is this aspect that is at issue when same-sex couples see the compromise offer of civil unions as stigmatizing and degrading.
The expressive dimension of marriage raises several distinct questions. First, assuming that granting a marriage license expresses a type of public approval, should the state be in the business of expressing favor for, or dignifying, some unions rather than others? Are there any good public reasons for the state to be in the marriage business at all, rather than the civil union business? Second, if there are good reasons, what are the arguments for and against admitting same-sex couples to that status, and how should we think about them?
Myth of the Golden Age
WHEN PEOPLE talk about the institution of marriage, they often wax nostalgic. They think, and often say, that until very recently marriage was a lifelong commitment by one man and one woman, sanctified by God and the state, for the purposes of companionship and the rearing of children. People lived by those rules and were happy. Typical, if somewhat rhetorical, is this statement by Senator Robert Byrd of West Virginia during the debates over the “Defense of Marriage” Act:
Mr. President, throughout the annals of human experience, in dozens of civilizations and cultures of varying value systems, humanity has discovered