Same-Sex Civil Marriage, Legal Discrimination, and the Social Functions of Marriage

In honor of the recent court ruling overturning Proposition 8 in California, I'm posting here the text of a talk I gave as part of a 2004 OSU Ethics Center Panel on “Gay Marriage: Civil Right or Threat to Tradition?” Here is what I said a bit more than six years ago: 

My goal tonight is to make the case for same-sex civil marriage—civil marriage, not holy matrimony or any other religious rite of marriage. Civil marriage is a legal category. It has nothing to do with religious beliefs and everything to do with tangible legal benefits—such things as inheritance rights, rights to make health care decisions for an ailing spouse, and the right to sponsor a spouse for immigration. By some counts, civil marriage confers more than a thousand federal protections. It’s desired not only for these legal benefits, but because it’s become a treasured social institution. If you’re legally wed, whether in a church or a courthouse, your relationship receives a special social recognition: you and your spouse are treated as a family.

I want to begin my case for same-sex civil marriage by doing something rather presumptuous, given that I’m a happily married heterosexual. I want to paint a picture of what it’s like to be gay or lesbian in our society. I feel remotely qualified to do this only because I’ve listened compassionately to the personal stories of my gay and lesbian friends. Anyone who’s done so knows, without having to consult a scientific study, that gays and lesbians don’t choose their sexual orientation. And they can’t ordinarily change it, even though those raised in conservative religious environments often go to Herculean efforts in the attempt—fervent prayer, ex-gay ministries, doomed heterosexual marriage. In every case I know the struggle has proved fruitless. Some manage to suppress or sublimate their sexual desires, and can find support for a life of celibacy in such organizations as the Courage Apostolate of the Roman Catholic Church. But if any manage to change their orientation, it’s few and far between. If God miraculously transforms those who pray to be made straight, he’s rather frugal with this so-called miracle. For most, being gay isn’t something you change but something you live with. The question is how you live with it.

In our society, gays and lesbians have four options. First, they can pursue a heterosexual relationship despite their lack of attraction. If they do, they can marry and know what it’s like to have a relationship recognized by law and supported by society. But it’ll be a marriage deprived of something most of us find crucial. Heterosexual sex, while possible for gays and lesbians, can neither express nor contribute to the intimate feelings of connectedness that we call romantic love, what the Catholic Church calls the unitive end of sex. When gays and lesbians choose a heterosexual relationship they give up on the possibility of such love, and they deprive their spouse of any prospect for mutual desire. Loving friendship is of course possible, but romantic love is not.

For this reason, many gays and lesbians choose a second option: a monogamous relationship with a member of the same sex. Then they can experience the unique bonding that comes with loving sexual expression. But their relationship will be socially marginalized, the privileges and supports of marriage withheld. And there is a further risk: When we work hard to build an intimate relationship, it becomes an important part of our self-understanding. When gays and lesbians build such a relationship, many in society will demonize it, effectively assaulting a deeply valued part of who they are.

To avoid this assault, they might embrace a third choice: a life of casual sexuality. If it’s furtive, done in the heat of the moment rather than as part of a committed relationship, then at least they can’t be accused of making a commitment to sin. If it’s something they themselves find rather demeaning, then at least they aren’t in danger of working hard to build something precious only to have it called an abomination.

Finally, they can choose a life of celibacy. Now it seems to me that a celibate life might well be, for some, a richly rewarding one. But it’s one thing to choose such a life, quite another to have it thrust upon you. And even though St. Paul himself argued that celibacy is a gift not given to all and that it would be better to marry than to burn with lust, gays and lesbians may feel that since marriage isn’t an option celibacy has to be their calling whether they have the gift or not. And so they grit their teeth, and they burn.

The one choice not available is the choice held up to the rest of our society as the ideal: loving marriage. Gays and lesbians can marry someone they can’t love, and they can have a loving relationship with someone they can’t marry. But the state denies them what’s available to every heterosexual: the opportunity to develop a loving, intimate sexual union recognized and supported by law. Two serial divorcees who meet at the gambling table in Vegas are free to marry that same night on a whim, so long as they’re straight. But my gay and lesbian friends who have been in faithful partnerships for years are denied marriage rights as if marriage were some kind of reward for the accidental good fortune of being straight.

I’ll be honest. It’s hard for me to discuss whether people I love will be granted the same life opportunities as everyone else. That’s not something you discuss. It’s something you do.

But I’m not naïve. I know that many believe this is something we absolutely must not do. While it seems clear from what I’ve already said that withholding civil marriage rights from same-sex couples amounts to legal discrimination against gays and lesbians, I also know that legal discrimination is sometimes justified, and that many think the current policy of exclusion is just such a case of justified discrimination.

But why think that? Amidst all the rhetoric, it seems to come down to this: opponents of same-sex marriage believe that homosexuality is a moral evil to be prohibited, and hence not something to be legally enshrined in marriage. But let’s be clear about this view. It’s not just promiscuous homosexual sex that’s being condemned. Consider the relationship between my friends Karen and Suzanne: a monogamous, faithful, loving partnership that has lasted for fourteen years and is characterized by mutual respect and care and the commitment to provide mutual support over a lifetime. The claim is that this relationship is an evil to be prohibited, even though, were the relationship heterosexual, it would be held up as a model of virtue, of chaste sexual expression, an example for the rest of the world to follow. Their relationship has every appearance of being good for them, and it doesn’t seem to harm anyone else. Why think their relationship is so morally pernicious that it’s better to practice legal discrimination than to recognize their relationship in law?

Some simply appeal to tradition here: marriage has always been between a man and a woman; society has always condemned homosexuality. But even if that were true, tradition alone is a poor guide on this issue. Traditional views were developed at a time in history when gays and lesbians had neither the conceptual categories nor the public voice to adequately express what it’s like to be gay. As a result, these beliefs were formed in a context of ignorance. We don’t have that excuse. Charity and fairness, it seems, would call us to rethink archaic dogmas in the light of compassionate attention to the lived experience of gays and lesbians, rather than squeeze them into a mold they had no part in fashioning. Tradition alone is no reason to perpetuate a discriminatory practice.

Of course, most opponents of same-sex marriage rely, not on tradition alone, but also on religious arguments. They appeal to Scripture or to some understanding of God’s plan for human sexuality in the natural order. The Catholic Church, for example, argues that God designed human sexuality to be essentially reproductive, such that all sex incompatible with the reproductive end violates human dignity. On the basis of these kinds of arguments many conclude that homosexual acts are immoral and that same-sex marriages should be prohibited no matter how hard that is on gays and lesbians. It’s just their cross to bear. We can be compassionate in helping them bear it, but bear it they must.

Such religious arguments are, of course, relevant for debates within religious communities about who should receive the religious rite of marriage. I don’t find these arguments decisive in my own religious context. While I treasure Scripture as a rich testament to the human encounter with God, I can’t accept those theories of scriptural authority which assume that just because some injunction appears in Scripture, or in Paul’s letters, we can conclude that it’s the timeless will of God. I believe, furthermore, that fidelity to an ethic of Christian love demands that we abandon a teaching that it seems to me has consistently borne poisoned fruits for our gay and lesbian neighbors. But these aren’t the arguments I want to pursue here. I want to focus, not on religious marriage, but on civil marriage.

We live in a liberal democracy that endorses the separation of church and state. Our Constitution was designed in part to ensure that no religious dogma, no matter how popular, could be employed to deny some people full equality under the law. If the only grounds for denying same-sex couples civil marriage rights are religious, then any government policy that discriminates against same-sex couples effectively endorses a particular religious view, and thus violates the separation of church and state.

The issue of same-sex civil marriage needs to be decided, not on the basis of religious arguments, but on the basis of the state’s constitutionally defined role in promoting social stability and the welfare and freedom of its citizens. It’s tempting to pursue this issue from the standpoint of privacy or freedom of association, but that’s not the approach I mean to take here. The fact is that marriage serves a number of important social functions. That’s why the state is in the marriage business in the first place. To preserve church-state separation, the state must base its decision concerning same-sex marriage on the considerations that got it into the marriage business: the social functions of marriage.

So what are these social functions?

One function is to provide a stable context for rearing children. This might lead some to think we can deny marriage rights to same-sex couples since they can’t make babies. But even though they don’t make babies, they can and do participate in raising them, and would thus be served by the civil marriage protections that contribute to a stable child-rearing environment. I might add that social scientific research does not support the view that same-sex couples are less effective than heterosexual ones at raising healthy, well-adjusted children.

More importantly, child-rearing isn’t the only social function of marriage. The state extends civil marriage rights to couples beyond child-bearing years and other couples who either can’t or don’t intend to have children. Why? A second important social function of civil marriage is to establish a kind of “default support person” for adult members of society as they confront life’s hardships. Hardship places stress on intimate relationships, and legally married couples are simply more likely than unmarried ones to stick together during difficult times and hence be available to each other as support persons. As Jonathan Rausch has pointed out, in the absence of a spouse the role of providing support falls “sometimes crushingly” on less immediate family and friends who have their own problems, as well as on charities and government programs that are already overtaxed, underfunded, and ineffective. If this is one of the social functions of civil marriage, then it’s in the interests of the state to extend same-sex marriage rights to gays and lesbians who, by virtue of their sexual orientation, can’t establish successful heterosexual marriages.

Perhaps even more important is the fact that civil marriage is a stabilizing force on society as a whole. The legal benefits of civil marriage encourage couples to form and sustain monogamous partnerships, and the prevalence of such partnerships helps to shield society from the more volatile effects of human sexuality run amok—the suicidal heartbreaks, the violent jealousies, the complex soap operas of sexual rivalry and exploitation that cause so much psychological damage to those caught up in them. At least as significantly, in this age of AIDS the stabilization of human sexual activity plays a critical role in promoting public health.

As it stands, gays and lesbians are denied participation in the primary social model for responsible sexuality. Denied access to the social supports of marriage, intimate relationships lose their traditional social anchor and are prone towards impermanence and, in some cases, promiscuity. If civil marriage were expanded to include same-sex couples, the stabilizing power of marriage would also be expanded.

Finally, there is this simple fact: people in mutually caring, sexually satisfying long-term relationships tend to be more satisfied overall with their lives. While access to civil marriage is no guarantee of a fulfilling relationship, it does provide social and legal supports that can facilitate the development of such a relationship. Promoting the life satisfaction of its citizens is surely one role of government—not merely for the sake of individual citizens but also for the sake of social cohesion. The more satisfied people are with their lives, the less likely they are to engage in disruptive antisocial behavior, and the more likely they are to support the society that contributes to their quality of life.

So: Why is the government in the marriage business? Because there are social advantages to promoting monogamous sexual partnerships. And these advantages would be advanced by extending civil marriage rights to same-sex couples. Hence, the social functions of marriage can’t justify the current policy of legal discrimination. It seems as if only sectarian religious arguments can do that. But to allow such arguments to determine social policy violates the separation of church and state. In a sense, that is what is really at stake in this debate: do we as a nation really believe in the separation of church and state?