How conservatives should have argued in court that gay marriage harms traditional marriage

by Alan Cohen

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PORTUGAL-GAY-MARRIAGE

I believe strongly in gay rights: I believe that whatever rights straight people have, gay people should have too. But, as regular readers of this blog know, I try to be honest about the evidence for my positions, and I point out when people I agree with on the big picture are wrong about the details or the rationale. Such is the case for the idea that gay marriage has no impact on traditional marriage.

On its surface, the idea that the gay couple next door will destroy my heterosexual marriage by tying the knot is laughably absurd. It’s so absurd that opponents of gay marriage couldn’t even find any rationale for it when arguing it in court, first before the California state supreme court, then before the US supreme court. When pressed by the justices, the lawyers ummed and ahhed and sputtered, a rarity in court.

However, this absurdity is only when we consider individual cases – there is substantial truth to the idea that gay marriage undermines traditional marriage at the societal level. American conservatives couldn’t make this argument because they are so ruggedly individualistic that more communal arguments didn’t occur to them (even if they believed them in their heart of hearts). Here’s how it works:

We have to start by asking the most basic question, what is marriage? Today, we think of marriage as two people falling in love, saying vows, making a family together, struggling through rough times, maybe getting divorced, maybe growing old together. In any case, the couple forms the nucleus of a family for whatever time they are together.

This definition of marriage is so obvious to us that we don’t often stop to consider that it is already a radical departure from what I’ll call traditional marriage. In traditional marriage, love is not the point.  Marriages are  arranged for either economic or political reasons, and the individual’s interests and desires are considered subservient to those of the family or clan. These interests generally include the production of future generations and maintenance of stability. The human heart, for all its wonders, is fickle, and creates a fair amount of emotional and relationship chaos if left to its own devices. One of the primary functions of traditional marriage is to prevent that chaos and its impacts on society.

Many societies around the world have or had traditional marriage: it is common in the Middle East and India today, was the norm in Korea until maybe 15-20 years ago, was common in Japan 40 years ago, and was common in Europe a century or two ago. It doesn’t exist everywhere – from what I can tell it is rare in more “primitive” tribal or hunter-gatherer societies, rare in modern societies, but common in large-scale pre-modern civilizations.

Very few people in North America today want to have a full-scale traditional marriage society. We like being able to choose our partners, and to choose to leave them if they become drunkards, violent, or unfaithful (or if we decide we don’t like the shape of their ears). We are not willing to put our individual happiness behind the interests of our larger families, and these larger families have in fact mostly ceased to exist as centers of power and social organization.

Traditional marriage is largely dead throughout the modern world, and that comes with pluses and minuses. On the plus side, no one is stuck for life with someone he hates, or someone who beats her. On the down side, divorce rates are high, families are hard to organize after three marriages with kids in each, and many marriages that might have worked with just a bit more social pressure will now fail, to the detriment of the couple and the kids.

Social conservatives are those who tend to lament the losses from traditional marriage and put less weight on the advantages of the modern system (even if most would never argue for a full return to the traditional system). They also note how rapidly things have changed. Compared to the grand scope of history, it has taken less than 100 years for most of the world to jettison a system that was the norm in most places. What most people – left and right – don’t realize is that the change is not yet finished.  As long as the societal conditions are right, traditional marriage is a stable system (in the parlance of economists or ecologists, a stable equilibrium: once you get there, it’s hard for the system to change). But the societal conditions have changed, and we are now in a period of flux, moving toward another stable equilibrium.

We know we’re not yet at equilibrium because (a) people don’t agree on the meaning or role of marriage in society; (b) things have been changing quickly – where is the evidence they have stopped?; (c) we are now debating gay marriage; (d) across modern countries, there is a wide variety of ways that marriage is viewed; and (e) the meaning of marriage is unclear when divorce is so easy.

What does this future equilibrium look like? It’s hard to say precisely, but it almost certainly doesn’t involve marriage. After all, if people can get divorced whenever they want and families are mixed and matched anyway, what does marriage really mean? Modern societies will not accept too much constraint on individual choice, and even marriage in its current form is somewhat of a constraint. Perhaps we will move to a female-friend structure, where frequent changes of partners makes the nuclear family hard to sustain and children are raised by the mother with help from her friends, or where groups of female friends share responsibilities for their children together. Who knows?

We can already see modern marriage dying in many places: in Europe, and here in Quebec for example. In Quebec, roughly one third of children are in homes where the parents are not married (but usually living together). These rates are even higher for younger families. Most young people are in serially monogamous, unmarried relationships, and few see themselves getting married eventually.

What does all this have to do with gay marriage? Well, gay marriage formalizes the notion that marriage is about individual choice. The argument for it is that it is discriminatory to allow straight people to choose to marry who they want, but not to allow gay people to choose to marry who they want. This is true only if we suppose that straight people’s choice of partner is a defining feature of marriage. This was decidedly NOT the case for traditional marriage. Legal acceptance of gay marriage, and the rationale that goes with it, is a nail in the coffin of traditional marriage. (Allowing divorce was placing the lid on the coffin.)

In this sense, conservatives missed out on their most powerful argument for why gay marriage harms traditional marriage. The harm is small relative to the damage that has already been done by changes in society, and the change is inevitable with or without gay marriage, but there is a valid argument that allowing gay marriage weakens the institution of marriage as a whole. If I am right that marriage itself will largely die out over the next hundred years, allowing gay marriage accelerates this. Thus, gay marriage can even be seen to have two distinct effects on marriage as an institution: it hastens the transition from traditional to modern marriage, and it hastens the societal change that will eventually lead to the phasing out of most marriage altogether.

Which leads to my preferred policy solution: stop having governments recognize marriage in the first place. Why should government be in the marriage business anyway? If people want to get married in church or by the beach, let them. That’s their private affair, gay or straight. The government is only implicated when it comes to practical aspects: benefits and the like. Civil unions can fulfil this role for everyone, gay and straight.

More broadly, why should we limit civil unions to romantic couples? Imagine, for example, a pair of brothers (or friends, or three of them, even) that live together, share household tasks, and constitute a family. They have no sexual relations with each other, but each has a series of short-term sexual/romantic engagements with women (or men). None are interested in marriage; for all practical purposes they are each others’ family. If any of them should have custody of kids, they’ll raise them together. Should they not be allowed the same tax and hospital visitation rights as a married couple? Why should the government impose rules defining their legal status in ways it doesn’t for romantic couples?

Thus, I propose allowing civil union status to any pair or group of adults that applies for it, regardless of the circumstances of their relationship. Marriage would still exist for those who wanted it, but would not be recognized formally by the government. There would be no question of gay marriage one way or the other.

Of course, this change is not going to happen immediately. In the meanwhile, I strongly support the same rights for gays that I have as a straight man. But let’s be honest, gay marriage is a very radical departure from what marriage has meant for most of history, and accepting it accelerates that change, for better or worse.

I’d love to hear your take on all this – leave it in the comments section.

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