February 15, 2012

The Gay Marriage Debate

The entire debate over gay marriage shows a tragic misunderstanding by both sides.

Let us consider what marriage is. It consists of three components – though not all three are essential in every instance. In no particular order, there is a contractual component, a social component, and sacramental component.

The contractual component is a legal arrangement between two parties, largely dealing with common property rights. Most of the legal ramifications of marriage have been adequately covered by the new institution of civil unions. Even most social conservatives are content to concede to gays and lesbians the right to civil unions. There have been objections from gay and lesbian groups that civil unions fall short of marriage. Some legal recognitions are not strictly property related – the right of spouses not to testify against one another in court for example. However, it does not appear that such legal rights as are currently not covered by civil unions constitute the major sticking points for opponents of gay marriage. Civil union could probably be extended to include all the legal rights accorded to marriage without too much difficulty. There might be some friction over the issue of adoption of children, but even that can probably be resolved.

The social component of marriage is, in most cases, an agreement and public declaration of monogamy. There are some “open” marriages and some polygamists about, but these are still exceptions in America. On the matter of enforcing such social constraints, however, the civil government has, for many decades, decided to be silent. Adultery may be frowned upon, but it is no longer a punishable offense. As such, monogamy is a legal non-entity, enforceable only by individual and public reproach. Further, I know of no one who specifically objects to monogamy on the part of homosexuals. Even people who consider homosexuality categorically sick or deviant don’t argue that monogamy makes it any worse. This social component is, therefore, not a matter of contention.

The final component of marriage is the sacramental one. A sacrament, of course, is a fixture of religion. To have a religion is to hold certain beliefs and submit to such rules as define a certain faith. Under the American Constitution, this is a strictly voluntary submission – or at least one that cannot be compelled by government. It may be that one’s church constrains one’s range of acceptable partners in any number of ways, but it is should not be within the jurisdiction of federal, state or local governments to mediate any behavior purely on religious grounds. To do so is, in effect, “to make a law respecting the establishment of religion” – which is prohibited, at least to Congress, by the First Amendment. While there is reason to be skeptical about the ease of applying John Stuart Mill’s harm principle, here is an instance in which it ought to be considered. This is to say, the case has yet to be made that gay marriage posses some demonstrable harm to non-gays. If such a case can be made then certainly it ought to be, but it is insufficient to merely argue that it offends one’s Christian sensibilities.

The problem is that the various levels of government have, through licensing, law, and even the required language of marriage ceremonies, deeply insinuated themselves into marriage as a sacrament. I have heard, on many occasions, ministers intone the words “by the power vested in me by God and the State of Ohio” – and found them both amusing and incongruous. Both those who advocate and those who oppose gay marriage are implicitly relinquishing to government a kind of sacred authority it ought not to possess. The function of laws regarding “marriage” should be to provide a workable contractual framework for such relationships as actually exist. This is to say, that all relationships between consenting adults that are not explicitly illegal (polygamy, incest, etc.) ought to be eligible for civil union, and the whole notion of marriage as a sacrament bestowed by government should be repudiated. If you want to say you are married because your church says so, or because it suits you, you should be free to do so. If sacrality exists at all, it is inherently an individual and inalienable experience – not the rightful realm of government. Let the state confine itself to contracts.

It seems likely that gays and lesbians look to the state as a surrogate for traditional churches that have rejected them. This void is not the state’s responsibility to fill. If they feel a need for sacred validation, they are free to concoct their own religious institutions in the time honored human way. Conversely, it is not the right of religious conservatives to get an extra helping of sacrality from their government by having their particular religious views mandated by law. That this has already occurred over long decades of relative consensus makes it no less an erosion of individual liberty. Ask most religious conservatives the direct question – “Do you think the government should regulate your sacraments?” – and they would balk immediately.

The whole debate, again, is not so much about what is good or fair as it is about the way we look at liberty in general. Both parties seem perfectly content to give up a little freedom for a bit illegitimate law that happens to suit them, and a bit of validation they are not entitled to.


  1. You are correct, of course, that part of marriage is sacramental; you are also correct that the State has no business at all being involved in the sacramental.

    However, you stumble a bit with this line: "It seems likely that gays and lesbians look to the state as a surrogate for traditional churches that have rejected them."

    I assure you this is not true, in any sense whatsoever. Homosexuals desire that the State grant them the full privilege and rights that all other citizens have: no more, no less. There are plenty of churches that accept those homosexuals who want a church; conversely, with the perhaps notable exception of Andrew Sullivan, few gays could give a damn about traditional churches.

    As for the social aspect, this too is conferred by the power of the State. Adultery may not be illegal, but it's still grounds for divorce. Homosexuals desire (and are entitled to) the same social respect for their marriages that heterosexuals receive, and this must be reflected in the laws to be truly fair. (In other words, adultery must also be grounds for homosexual divorce.)

    Thirty years from now the proscription against gay marriage will be viewed in exactly the same light as we now view the proscription against interracial marriage, just as thirty years from now the proscription on gays serving in the military will be viewed in exactly the same way we now view racial segregation of the military.

  2. Per MCPlanck's comment--

    What you are calling "social" is essentially what I am calling "contractual". We agree that people should have equal contractual rights in the sense I intended. However, the idea that the state should mandate our strictly "social" attitudes really ought to frighten anyone. It is reasonable for a state to guarantee the safety and property of all of its citizens. It is not reasonable for the state to tell us which behaviors or groups we should approve or disapprove of. Civil liberty does not demand that we tolerate lynchings, but it does demand that we tolerate the bigot's right to think and to speak as he or she chooses.