Tuesday, February 28, 2006

Rush to judgment

Vote on the amendment banning the recognition of same sex marriage is set for later today. I've spent a good portion of the last day or so preparing to teach this tomorrow. I'm not interested in getting into the merits of the amendment, but I find the dismissal of those who oppose gay marriage as "bigots" expressing their "hate" to be intellectually vapid and enormously short sighted.

I want to put aside for one moment whether it is fair to characterize people who follow religious tenets concerning homosexuality that have been just about unanimously held by the Abrahamic faiths until maybe the last 20 years or so as "bigots." The church I attend has a number of gay parishioners. I am happy to have them as friends and, for reasons that are too complicated to get into here, I do not feel called to judge them (as I hope they do not feel called to judge me.) But there are plenty of issues raised by same-sex marriage that have nothing to do with whether one believes that gay and lesbian relationships are "sinful" or "wrong."

There are issues raised by the marriage of same-sex couples surrounding the presumption of parenthood and the assumptions of spousal dependency and the string of legal rules that flow from it. There are issues regarding the definition of adultery and whether sexual exclusivity in marriage should continue to be regarded as normative and, if so, why? It is an open question whether the reasons for legal recognition of marriage (which, whether or not all heterosexual couples do or even can reproduce, are historically about confining potentially procreative sexual relationships to marriage) even apply to same-sex relationships. If, as some argue, marriage is really about freely chosen relationships of mutual affection and support, there are issues regarding what other types of relationships should be accorded marriage - or marriage like - recognition.

To say that marriage is simply an extension of "benefits" that should not be denied people who choose a conjugal relationship with a member of their own sex is simplistic. If that was the issue, there are other ways to address legal unfairness to same-sex couples.

I'm not sure how I come down on all of this, but to say that people who want to discuss these questions are "bigots" is just another way of telling people who may disagree with you to shut up. To say that the complexity of the issue suggests that it be addressed by legislation and not, as in Massachusetts and Vermont, by the courts is not "hateful" but wise. To hesitate, just a bit, before redefining an extremely old and uniquely universal institution that has been otherwise been weakened over the past fifty years at an enormous social cost strikes me, not as prejudiced, but as prudent.

So, whatever the vote, let's skip the name-calling.

8 comments:

Anonymous said...

It is an open question whether the reasons for legal recognition of marriage (which, whether or not all heterosexual couples do or even can reproduce, are historically about confining potentially procreative sexual relationships to marriage) even apply to same-sex relationships.

Your post suggests that marriage laws shouldn't be organized around the sex of the two people in a loving, committed relationship, but around whether or not that couple has a child.

Moreover, the civil unions and marriage ban (which you seem, despite commenting to the contrary, to be defending on its merits) has two sentences. The ban is about far, far more than marriage.

-Doris

Jay Bullock said...

There's a lot I could respond to, but I'll stick to this one:
To say that marriage is simply an extension of "benefits" that should not be denied people who choose a conjugal relationship with a member of their own sex is simplistic. If that was the issue, there are other ways to address legal unfairness to same-sex couples.
But it is the issue, Rick, and was made the issue by those who wrote the amendment. Its second sentence very clearly says that the state cannot grant the kind of status you're talking about, cannot address the legal unfairness. If this were only about banning the application of the word marriage to a particular kind of relationship while permitting Vermont-style civil unions, it would be one thing (and I'm not keen on that, either). But the amendment as written precludes any kind of civil unions arrangement or other "domestic partner" designations.

The "substantially similar" phrase is slippery, and could mean anything from one substantial right to 99.9% of the rights. The end result will be 0%, since that is the only safe bet.

Along a slightly different vein, why should we continue to confer "benefits," if you will, on one group automatically, while telling another group that they will have to engage expensive legal assistance and fight long battles to achieve something that in the end must not be "substantially similar" to the rights granted by default to the first group?

Okay, one more:
I want to put aside for one moment whether it is fair to characterize people who follow religious tenets concerning homosexuality that have been just about unanimously held by the Abrahamic faiths until maybe the last 20 years or so as "bigots."
The question isn't whether people believe a certain way, or choose to live according to certain principles; the question is whether they can use those beliefs to justify carving out exclusion from rights in our state's constitution. That crosses the line from following religious tenets to something else entirely.

Rick Esenberg said...

Doris

I am still struggling with this, but the key is not whether a couple has a child but whether the type of relationship that is being regulated can lead to children.

Jay

I am not yet ready to say whether I think the second sentence is properly drafted. In my mind, the issue goes beyond the application of the word marriage to how the law affects the way in which people see their relationships. My guess is that I am probably a lot older than you (I'm a late baby boomer) and I have been really struck by the way in which the things that we thought - and to some extent still think - were liberating could actually cause so much harm and misery. Social reality was far more complex than we thought.

What I was advocating - at this point - to all of my few many, many readers - was that we try to have this discussion without calling people names.

sneed said...

A fair number of the people opposed to gay marriage are bigots, but they don't make the argument Rick is making. Rick's argument is not bigoted. As he suggests, the good reason to oppose gay marriage is because it further changes the nature of marriage as an institution.

Marriage is not fundamentally about romantic love or "relationship recognition"--it's about kids. Marriage solves a specifically heterosexual problem: that their sex can produce children.

Recognizing gay marriages further erodes the link between marriage and children, an erosion already well underway in our culture. We see the damage caused by that erosion all about us in the form of out-of-wedlock births, single-parenting, and childhood poverty.

The European experience suggests that recognizing gay unions will not slow these trends, as some advocates have claimed, but only accelerate them.

So I second your view, Rick. But don't expect much civility on this issue. The fact that there are bigots on our side means that the other side will try to write all of us off as homophobes. I might do the same if I was on their side because it's rhetorically effective.

Seth Zlotocha said...

I agree with your conclusion, Rick, that name-calling should be left out of this debate. But I have a couple comments on the manner in which you reach that conclusion.

One, I'm not sure how legalized same sex unions would affect the definition of adultery and how we view sexual exclusivity in marriage as a societal standard. Could you explain a bit more about what you mean on this point?

Two, historically in the United States marriage has been about far more than just procreation. Defining gender roles is one big example, among many others. In the past, marriage brought two people into a social contract with very clearly defined roles of "husband" and "wife"--once married, everyone in the community knew what those roles meant and how they fit into the social fabric of society. That, however, has changed, and there is no longer a monolithic definition for "husband" and "wife"--couples are more free to define those as they see fit and that's considered socially acceptable.

In other words, marriage in the United States has been very much a malleable institution, which makes the possibility of expanding the definition to include same sex couples at some time in the future not such a radical idea. This amendment, however, would (save a follow-up amendment) stop that from ever happening. Therefore, as Republican Gregg Underheim pointed out yesterday, the amendment is actually what's radical in this debate by taking the step of writing social policy into the state constitution, something that we've never done before.

Three, the same-sex marriage argument is about more than just freely choosing relationships. Among other things, it's also about couples--who are, for the most part, socially accepted in their local communities--wanting to take public vows to legally affirm their relationships as citizens of the State of Wisconsin. This public and legal affirmation is a large part of marriage in our society--and one that doesn't take the approval of the majority of citizens in the entire state to make. (But, again, the debate before us today isn't even about legalizing same sex unions--it's about keeping open the possibility that some day we might.)

Four, you make a good point about pro-same sex union advocates needing to make more of an argument than just the need for an extension of benefits. I think many do, but in the short attention span of our political culture, short soundbites tend to be more valued than a lengthy, reasoned explanation (but there are many out there).

grumps said...

It is that maleability of marriage that underscores the inadvisabilty of the amendment. My great-grandparent's marriage was fundamentally different from mine (the second for both of us.) It was important to them that there be men to work the fields and to live long enough to support them after they had moved off the farm.

Just a few generations before that marriage was far more an economic accomodation than any modern notion of romantic love makes it appear.

Supporters of this amendment rail about the history of marriage and how it has "always" been. As with any institution marriage has transformend itself to suit the needs of society.

I'm sure that somewhere in my ancestors was a man who decried the fact that his wife was no longer his property.

Jay Bullock said...

I'm not sure how legalized same sex unions would affect the definition of adultery and how we view sexual exclusivity in marriage as a societal standard.
Seth, there is a stereotype believed by many on the "pro-ban" side of this issue that gay men, in particular, find it difficult to maintain monogamy. I'm guessing that's what's going on here.

I have been really struck by the way in which the things that we thought - and to some extent still think - were liberating could actually cause so much harm and misery. Social reality was far more complex than we thought.
Rick, in many ways, the current push for gay marriage is the opposite of the kind of liberalizing (with a small l) of sexuality and relationships that it is so in vogue now to backlash against. Allowing gays and lesbians to marry facilitates the creation long-term, stable, committed and monogamous relationships; "free love" and whatnot facilitate their destruction. I saw The Ice Storm, you know. :)

As for the issue of children, gay and lesbian couples are no less capable--though less likely--of having and rearing children. And though Sneed says that allowing gay marriage further distances marriage and child-having, for one, that horse is already out of the barn, and, for two, allowing married gay and lesbian couples to raise children surely that strengthens it, right? Not all married gays and lesbians will have kids, certainly, but many will.

Rick Esenberg said...

Grumps
The argument that marriage was once not about romantic love weakens your position. Generally speaking, the folks opposing gay marriage argue that marriage is about creating an institution that supports the raising of children that heterosexual relations are likely to produce. The people who advocae for gay marriage say that the marriage is about mutual affection and support.

Jay

Its not just people on the "pro-ban" side that say that gay men might not value monogamy in the same way that has become the norm in heterosexual relationships (not, I should add, by the insistence of heterosexual men), but prominent advocates of gay marriage such as, for example, Andrew Sullivan.

I understand the argument that allowing gay marriage or civil unions might have a favorable impact on gay people. My conservative pundit idols are Jonah Goldberg for style and David Brooks for substance. Brooks wrote a column in the NYT stting fiorth a conservative defense of same- sex marriage. But I think the issue is more complex than whether one does or does not like homosexuality.

Given that that I think there is probably no anti-poverty policy more important than supporting marriage, I'm not getting on the gay marriage bandwagon.