Thursday, February 2, 2012

On "the Core" of Marriage

In the comment threads over at Family Scholars Blog there has been a fair amount of discussion about what constitutes the core of marriage. By "core," it seems as though people are referring to the essence of marriage, or to its defining features and/or purpose.

Supporters of same-sex marriage (SSM) are sometimes challenged to identify this core of marriage, since it is us (supporters of SSM, that is) who argue that marriage is something that two people of the same sex can have.

Why I view this challenge as problematic is because I contend that it is inaccurate to speak of marriage as though it has, or should have, one "core" that is universally-accepted by all in a society, much less across all societies that have ever existed. For one, it is a demonstrable statement of fact that people have differing beliefs as to what constitutes the, or even a, core of marriage. To some, the core of marriage is "one man and one woman." To some, it is "two adults in a romantic and mutually-supportive relationship." To some, it is "one man and one woman (and this same man and another woman, and this same man and possibly another woman)." To some, it is "a group of people who are all married to each other." Further variations exist.

Two, a related point, marriage is a human construct and, as such, is given meaning by the humans who utilize it, recognize it, and speak of it.

Sure, some argue that marriage is not a human construct and that it instead comes from, say, God or is just a fact of nature. But, that argument is unconvincing. How does one prove that marriage comes from God? How does one recognize a marriage in nature, in the way that, say, we would recognize a tree or a flower?

Most of us understand how babies are made but, in nature, absent the existence of a marriage license, how do we know that a marriage exists? Is it every man-woman pair that engages in sexual intercourse? Is it only the ones who say they're married? Is it any man-woman pair that has children, even if they don't plan on staying together for life?

My point with these rhetorical questions is that marriage is not a universal, readily-recognizable entity in the way that tangible, natural phenomena are.

Abstractions aside, what matters to many same-sex couples isn't where marriage supposedly comes from or what its "One True Core" is. Many do not view this conversation as an esoteric debating exercise. What matters are the rights, benefits, obligations, and privileges that flow from a state which grants some partnerships the legal status of marriage.

In legal terms, in the US, marriage has multiple meanings or "cores." In New Hampshire, for instance, "[m]arriage is the legally recognized union of 2 people. Any person who otherwise meets the eligibility requirements of this chapter may marry any other eligible person regardless of gender." The core of marriage is two people, of any gender, who meet certain requirements.
But, in Nevada, the state's Constitution reads, "[o]nly a marriage between a male and female person shall be recognized and given effect in this state." There, the core of marriage is between two people, one of the male sex and the other of the female sex, who meet certain requirements.

From a religious standpoint, Catholicism defines marriage as a "covenant by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring. [It] has been raised by Christ the Lord to the dignity of a sacrament between the baptised."

Other religious groups, such as the Metropolitan Community Church (MCC), Unitarian Universalists, and some rabbis in the Reconstructionist and Reform Judaism movements view both mixed-sex and same-sex couples as capable of comprising the core of marriage.

In light of this definitional diversity, perhaps marriage doesn't have to mean the same thing for everyone across all secular, societal, and religious contexts. Perhaps it is an institution that never can mean the same thing to all in a society. Certainly not in a society that is increasingly accepting of the equal dignity of non-heteronormative relationships and their needs to protect their families via the legal system.

If it involves consenting adults, I generally support the right of private organizations and individuals to define marriage as they deem fit. The Catholic Church doesn't want to perform same-sex weddings? Fine. I don't want a wedding in a Catholic Church anyway. (I recognize that some people might want that who cannot have it, but I would support that progressive change to come from within the church, rather than through the state forcing the church to solemnize same-sex marriages).

To me, those who make arguments about what marriage supposedly is are refusing to participate in the more relevant debate that needs to take place in a democratic society. When very real benefits, rights, obligations, and privileges are accorded to those who possess the status "married," the only debate is what should the core of marriage, from a civil, legal standpoint, be?

Under Equal Protection doctrine in the US, we generally strive to treat "likes alike" and "unalikes unalike." To continue being very general, it is okay for the state to discriminate, but it must have good enough reasons to do so. That is, those being discriminated against must be different in a manner that is relevant to why they are being discriminated against.

To get out of the realm of abstractions, I will note a core of marriage as articulated by Elizabeth Marquardt,at Family Scholars Blog:

"Rather, a core purpose of marriage is to channel the reality that heterosexual sex quite often makes babies into a stable (most likely to be found in a marital) union of the baby’s own mother and father, for the sake of the babies and the mothers and father."

Here, an important core of marriage, according to Elizabeth, is for children to know and be raised by both of their biological parents. Thus, using this core of marriage, it would be acceptable to not allow same-sex couples to marry because they do not fulfill this core. There would be, it seems, no point to their marriage if marriage is about a man and a woman creating children together and then raising those children together.

And yet, we can easily think of other couples, couples who are allowed to marry, who similarly fail to fulfill this core of marriage:

1. A childless, post-menopausal woman who marries a man
2. A man and a woman who are fertile with other partners, but not with one another*
3. A man who lacks testicles who marries a woman
4. A woman who has had a hysterectomy who marries a man

I could continue.

These examples are not "gotchas." I want to be very clear about that.

See, the only thing our legal system cares about in asking whether whether state discrimination is the acceptable kind of discrimination is whether a legitimate enough reason exists for that discrimination. And, on that front, if the purpose of marriage is to channel heterosexual sex into procreation that results in children being raised by their biological parents, couples 1-4 are just like same-sex couples: Any children they raise will not be both of their biological offspring.

And so, from an Equal Protection standpoint, the legal system should be treating likes alike. But, in most US states, it's not. Most states grant marital status to some mixed-sex couples who haven't "earned" it via reproduction and child-rearing, while denying that status to same-sex couples precisely because they haven't "earned" it in that way.

Why observing this reality isn't a "gotcha" is because I contend that, if the "core" of marriage is what Elizabeth says it is, then it degrades that core of marriage and confuses people about what that core is, when we allow couples 1-4 into marriage. Allowing such couples into marriage is to grant them a special privilege that is denied to those with whom they are similarly-situated.

Indeed, to many LGBT people and allies, it looks like couples 1-4 are granted marriage licenses not so they can fulfill the core purpose of marriage, indeed they cannot, but to give them a nod, a wink, and a pass because they look a lot like members of the Super Special Heterosexual Procreators' Club. (And that's before we even start looking at possible anti-gay/bigotry-related motivations that some harbor).

So, when we start thinking about whether or not discrimination against same-sex couples is the acceptable kind of discrimination in light of what marriage is purportedly all about, it begins looking less and less acceptable due to the overbroad nature of many marriage laws.

Now, I am not, of course, actually arguing that couples who cannot procreate degrade the institution of marriage. But, rather, that we seem to have a societal incoherence in talking about marriage, with those on all sides of the issue claiming that they alone possess its one true definition. (And here it is worth noting that Elizabeth said that she was stating "a" core of marriage, which suggests one of many possible cores, rather than "the" core of marriage).

Our overbroad (or is it underinclusive?) marriage laws are reflective not only of this incoherence, but of the reality that marriage simply means different things to different people.

Maybe we need to do a better job of becoming okay with that.

*In about 10% of infertility cases, a couple's infertility arises from a combination of both of their individuals make-ups. They may be fertile with other people, but they cannot conceive with one another. Such a couple is a particularly apt comparison to same-sex couples.

Since they are failing to fulfill the purported core of marriage, I wonder, if marriage rights were denied to them on that basis, would people tell them they could simply choose to marry other people? Or would that be readily-recognized as cruel?

[Cross-posted: Family Scholars Blog]

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