I admit to having a soft spot for my lefty friend Illusory Tenant even as I am troubled by his cattiness toward people for whom I have a great deal of respect. He writes on an interesting on-line debate sponsored by the Federalist Society on the issue of same sex marriage, but misses, I am afraid, the point made by the principal opponent of same sex marriage. It is the cavalier dismissal of what she has to say as incomprehensible and "funny" that prompts me to comment.
The debater in question, Amy Wax, is a lawyer, physician and rather prominent and well published legal scholar at Penn. That doesn't mean that what she says is right. But it does suggest that it be taken seriously.
I have been in a few of these same sex marriage debates and I can't say that she makes the best case that I have heard, but she does make some important points - one of which is not often made as explicitly as she makes it and is interesting enough to linger over.
One of the reasons that opponents and proponents of same sex marriage pass each other in the night is that proponents often (not always) have - or at least profess to have - a rather "thin" view of social institutions, minimizing the extent to which they shape behavior and establish what is and is not normative, even if those standards are not always observed.
Wax is concerned with the breakdown in conjugal marriage, hence her reference to the rise of "multi-partner relationships" (by which she means both infidelity and serial monogamy) and the harm that it has caused, particularly in inner city and low income communities. She doesn't "blame' same sex marriage for this, but she is going to evaluate the case for it in light of this. Will it ameliorate, aggravate or have no impact on the weakened institution of marriage?
In assessing this, one of the things that she is concerned about is the impact of same sex marriage on the norms of marriage. One of the norms of marriage is monogamy and fidelity. There are "open marriages" among heterosexuals, but the overwhelming evidence is that it doesn't work. Even if men and women don't always abide by this norm, it is the standard. It is the thing that is expected and which ought to be the goal.
She is concerned, then, about expanding marriage to a set of relationships - those between male homosexuals - in which that norm is, not simply breached, but, for a majority of those involved, rejected as a matter of principle.
Andrew Koppelman and Dale Carpenter, both able advocates of same sex marriage, (I assign a paper on the topic by Koppelman in my Law & Theology seminar), do an able job of trying to respond to her concern, but don't really deny her premise, i.e., that gay men, even in a committed relationship, have a different attitude toward sexual monogamy. She argues - and they don't deny - that the problem is not that gay men, being human as all of us, don't always live up to the norm, but that they don't think it ought to be a norm.
Koppelman and Carpenter argue that lesbians are notoriously monogamous and that there is no reason to believe that a small percentage of married men will have an impact on the behavior of heterosexual couples. Maybe they're right.
But one of the reasons they may not be is that same sex marriage is not just about - it may not even be primarily about - facilitating the relationships of individual couples. It is about what Koppelman has called the sanctification narrative, i.e., it is pursued not only for its instrumental value (i.e., tax bennies, fringes, etc.), but also for its expressive value. It communicates a message of the equivalence of homosexual and heterosexual relationships.
But that can't happen unless the rest of us are "taught" about same sex marriage and heterosexual marriage is no longer "privileged," thus, as one of the participants in the debate points out, California has gone to marriage licenses that list "partner one" and "partner two." To refer to "husband" and "wife" would be hetero-normative. Massachusetts and other states make a point of teaching children about all kinds of families, including those with two mommies or two daddies. Not to do so would to fail to honor diversity.
Thus, even if same sex marriage is legally recognized, it will remain important that social norms not mark it as a disfavored or "lesser" form of marriage. Under those circumstances, it is not at all clear to Wax that social norms developed for marriage between men and women can survive its redefinition to include same sex couples. Given the difficulty of monogamy, she argues, in a passage presented without context by IT, that she "just [doesn't] agree that gay men will keep their non-monogamy to themselves." It will, she says, "be known" and, since they are just as married as anyone else (a conclusion compelled by the sanctification narrative), the social norms of marriage are placed under additional pressure.