Tuesday, June 24, 2008

Article Review: "The Harm of Same-Sex Marriage: Real or Imagined"

I recently came across a particularly articulate law review article discussing same-sex marriage. Authored by law professor Robert Lipkin and entitled "The Harm of Same-Sex Marriage: Real or Imagined," I encourage those on any side of this debate to read Mr. Lipkin's fair-minded approach to the issue.

In it, he makes several salient points:

1. "What is the definition marriage?" is the wrong question

Although marriage defenders usually present their definition of marriage as though it is a universal statement of fact, the reality in which we as a society operate is such that "no single, uncontested definition of marriage exists." Therefore, as Lipkin states,

"Rather than arguing about what the definition [of marriage] is or what the practice has been, candor suggests going directly to the heart of the controversy: Should marriage include same-sex couples?"

The problem with debates as to what the definition of marriage is, to borrow some of the author's terms, is that those on both sides of the debate define marriage as that which they believe it should be while stating the definition as though it describes what marriage actually is. For instance, marriage defenders insist that marriage is some variation of the "one man and one woman" definition while marriage equality advocates insist that marriage is some variation of the "two people who love each other" definition. We quickly run into debate futility when those on both sides present their definition of marriage as though it is The Universal Definition of Marriage and, therefore, the matter is settled in their favor.

I have pointed this out numerous times in arguing with so-called marriage defenders. Their responses, usually consisting of circular arguments like "marriage demands a man and a woman because only a man and a woman can get married" and/or vague meaningless soundbites like "you can't defend what you can't define," have indicated that the point goes completely over their heads. Rather than articulating the actual harm that would be caused by allowing same-sex couples to marry, perhaps because they are unable to do so, they instead re-iterate "buuuuut marriage is between a man and a woman." Unfortunately, far too many marriage defenders are unable to see the circularity of their arguments.

Don't tell me what (you think) marriage is. On that, we obviously do not and will not agree. Tell me the reasons why same-sex couples should or should not be allowed to marry. I can concede that in most US states, marriage is legal only between a man and a woman and, therefore, the definition of marriage in many states is "one man and one woman." But at the same time, as one of Lipkin's David Hume-quoting footnotes reminds us, "'is' does not imply 'ought' and even if the current meaning of marriage is heterosexual exclusively, that tells us little about 'how marriage ought to be understood.'"

2. Is Change Necessarily Bad?

One particularly interesting discussion within Lipkin's article centers around questioning whether allowing same-sex couples to marry would constitute an actual change to the institution of marriage and, if so, whether such change would necessarily cause harm.

"Change is an inefficient conceptual tool because it is so easy to consider all change as radical change. Indeed, it is not uncommon for some to insist that almost any change from the status quo is ipso facto a radical change involving the elimination of the social practice."

Supporting this statement, Lipkin cites Justice Scalia's rather hyperbolic dissent in the US Supreme Court case allowing women to attend the Virginia Military Institute. In his dissent, Scalia wrote that integrating women into this military school "shuts down" the entire institution. Lipkin suggests that what Scalia really meant as that limiting VMI's enrollment to males only was an essential feature of the institution and, therefore, opening enrollment to women eliminated this essential feature.

As an interesting aside, the VMI debate went to the heart of another definitional "quagmire": Does male-only education define VMI or does military training define VMI? Those were the essential definitional arguments presented in the VMI debate. In the face of both sides presenting such arguments, the more relevant question instead was this: In terms of harms and benefits, what are the reasons for and against admitting women to VMI?

Furthermore, and perhaps the most important piece of Lipkin's analysis, "We need concrete answers, if available, to the question of why changing the application of a term [to include same-sex couples] changes the defining characteristics of that term, and why changing the application of a term is necessarily bad." In other words, we need less abstract predictions as to how marriage will be "deconstructed" or "redefined" and more evidence or arguments as to why such a redefinition would be a bad thing. Change, of course, does not necessarily cause harm.

3. The Harm

I believe that it is possible for some people to oppose same-sex marriage without automatically being homo-bigots. While I also believe a strong correlation exists between bigotry and opposition to same-sex marriage, I can concede that some people may oppose same-sex marriage because they genuinely believe that the harm that would result from allowing same-sex couples to marry would be greater than the benefits. I, of course, don't agree with such an analysis, but I can agree that such a person does not necessarily hate gay people. David Blankenhorn, whose book I reviewed here, is one such person who may be conscientiously opposed to same-sex marriage. I find his reasoning problematic, but he at least engages the issue respectfully. At the same time, I have yet to find many pro and amateur marriage defenders of whom I can say the same. Whether due to their blatant bigotry, mis-use of research studies, and/or general vilification of gay people, their writings indicate that a large part of their opposition to marriage equality is based on their dislike of gay people or their belief that gay men and lesbians have deep moral failings.

But alas, even though we are rarely shown the same respect in return, I agree with Lipkin that, "in fairness and respect for those conscientiously opposed to same-sex marriage, we should try to identify the nature of the harm they seek to avoid."

While Lipkin doesn't discuss every single harm that marriage defenders predict, he does discuss a key predicted harm- that allowing same-sex couples to marry would offend those who believe that the essential nature of marriage is that it includes one man and one woman:

"The public environment constantly affects us by exposing our normative environments to conduct and attitudes of which we sometimes disapprove strenuously. Accordingly, disfavored attitudes and conduct in the public environment threaten our own normative environment in the sense that they make it more difficult for us to preserve its integrity and character. ...

Since our normative environment and the public environment consist of the choices we are permitted to make, those who oppose same-sex marriage want to eliminate from our normative environment the possibility of such a choice. Here it does no good to tell these opponents, 'so don’t enter a same sex marriage yourself,' because it is precisely the possibility of others entering into such marriages that is a loss for them. In their view, marriage is exclusively between a man and a woman, and anything else is a threat to, and makes a mockery of, a hallowed institution."

To many marriage defenders, perhaps the most essential feature of marriage is a one-woman one-man nature of it. Allowing the possibility of two people of the same-sex to marry debases the integrity of what marriage is to them. I can concede that that is a harm. Yet, because I believe that same-sex couples ought to be allowed to marry does not automatically mean that I am insensitive to this harm. Rather, I would tend to agree with Lipkin's argument:

"Democratic societies committed to liberty and equality cannot countenance this kind of harm as the basis of legal
prohibitions. In a democratic society, excluding individuals from traditional social practices and institutions is justified only when inclusion harms the traditional practice or the individuals participating in the traditional practice. However, this
harm must eliminate the practice entirely, or prevent those who value the practice from being able to engage in it."

In other words, that allowing same-sex couples to marry would devalue marriage in the eyes of those who believe that marriage is only between a man and a woman is not sufficient harm to prohibit same-sex couples from marrying. Not only does the inclusion of same-sex couples neither eliminate marriage nor prevent heterosexuals from marrying, but every important change in our society has "harmed" the "normative environments" of those opposed to the change. Part of living in a democratic society, after all, is learning to to "deal with the harm to his or her normative environments inflicted by others seeking to flourish according to their own normative environments."

The ideals that we as a society supposedly value are tolerance, plurality, and equality. Yet, these values aren't free. We pay for them by having to tolerate actions, practices, and choices that we do not agree with. At its core, then, the marriage debate is really a choice we are making about the values we want our society to embody. Are we okay with intolerance, conformity, and inequality?

Perhaps someday we will want to embody tolerance, plurality, and equality rather than just saying we do.

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