Wednesday, January 29, 2014

Civil Marriage vs Civil Union: Why NOT Leave Marriage to Churches?

I've heard many people on both sides of the same-sex marriage debate make the following remark: "Really, the state should stay out of the marriage business altogether. They should offer civil unions to anyone who wants legal standing for their partnerships, and leave marriage to the churches."

Well, why not? There may be reasons for the state to legally recognize and regulate domestic partnerships--but "marriage" is such a heavily weighted concept, fraught with religious and social significance. Why couldn't the state avoid all the controversy by just announcing that it's limiting its role to making legal contracts between domestic partners, without intending these partnerships to be "marriages," however that contested concept is understood?

Some claim that, in effect, that's all the state is really doing now anyway: making legally binding contracts available to those couples who want to enter into them. If we all just agree to stop calling these contracts marriages, then the controversy about making the contract available to same-sex partners will go away. Nobody has to worry that "marriage" is being distorted.

The insistence by conservative churches that marriage is essentially discriminatory is perfectly compatible with the state conferring something that isn' long as all agree that what the state confers isn't marriage. For conservatives, this may be a liberating idea: The state can have its egalitarian civil unions, and conservative churches can have marriage, unsullied by the corrupting influence of the enlightenment value of equality under the law.

Of course, it won't actually be protected from egalitarian values. Even if what the state confers isn't called marriage, there are plenty of religious communities that are convinced of the moral imperative to make the good of marriage available regardless of sexual orientation. And nothing is to stop them from calling the egalitarian unions they recognize "marriages." Conservatives are, of course, free to say of those relationships that they aren't "real" marriages--on the grounds that "real" marriage discriminates against persons of a homosexual orientation. But they're free to say that now about state-conferred same-sex marriages.

The difference is that when the state does it, it has a broader social influence than when an individual church does it. If what the state confers is broadly recognized as marriage--and the trend towards legitimizing same-sex marriage continues--then it follows that there is nothing about marriage that essentially excludes gays and lesbians from enjoying its benefits. (Keep in mind that the benefit of marriage is the benefit of having your intimate partnership recognized and treated in a distinctive way; it wouldn't be the kind of benefit that we take it to be if marriage were conferred only in your relationship with individuals with whom you don't have and couldn't ever form an intimate partnership--thus, even if gays and lesbians are as free as anyone to marry someone of the opposite sex, rules that restrict marriage to heterosexual pairings ensures that they are denied access to the benefits of marriage; while heterosexual can enjoy the benefits, gays and lesbians cannot).

Here, then, is the chief reason why religious conservatives are drawn to the idea of eliminating civil marriage altogether, in favor of some form of domestic partnership contract that no one calls marriage: if the state is non-discriminatory in conferring the benefits of marriage, this is likely to have a substantial influence on dominant social values. It is one thing if liberal churches are doing this, something else if the state is. In the latter case, it is far more likely that the broad public will increasingly view the conservative insistence on discrimination in marriage as wrong.

Does that fact serve as a reason for the state to get out of the marriage business, so as not to unduly influence broad social values in a way that promotes equality and leads to greater social suspicion of discriminatory practices? One might argue that a key feature of liberal democracy is that the state strive to be as neutral as possible when it comes to competing value systems, so that everyone has equal liberty to live life in the light of their commitments.

But, of course, this very call for neutrality is justified by a commitment to liberty and equality in the midst of diversity--and any state policy that is premised on the value of equality and liberty in the midst of diversity is going to influence public sentiments in a way that's unfavorable to comprehensive value systems that are discriminatory and repressive and intolerant of difference. If the liberal democratic state can't pursue policies that have the effect of leading people to think more highly of equality than discrimination, then the liberal democratic state is thereby barred from being a liberal democratic state.

To offer an analogy: The state may have a duty--based on its founding values--to extend free speech to Nazi groups. It has no duty operate in ways that protect Nazi groups from social disapproval when those groups exercise their freedom of speech to spout hate.

Put simply, so long as discriminatory religious groups are free to be discriminatory in their own sectarian marriage practices, the liberal democratic state has lived up to its calling. If it offers marriage that isn't discriminatory, then it is further expressing its foundational values--and doing this is not rendered impermissible by the mere fact that doing this is going to indirectly shape public sentiment so that discriminatory religious groups, while still free to practice their discriminatory values, will feel increasing social disapproval when they do so.

So, the state has no duty to stay out of the marriage business just because its egalitarian commitments would force it to confer marriage in ways that would make certain discriminatory religious groups look bad. And so it all boils down to whether there are reasons for the state to do more than confer contracts on domestic partners. Are there reasons for the state to call what it bestows a "marriage"?

I think so. Marriage is a social institution. It was a social institution before there were nation-states like ours that established legal mechanisms for recognizing marriages. It is a social institution that cuts across diverse religious communities (albeit with variations in form). Marriage wasn't invented by Jews or Christians or Hindus, etc.--but Jews and Christians an Hindus all have ways of formalizing marriages within their own religious frameworks.

Obviously, religious communities have reasons why they think they should be involved in this marriage business. So does the state. And if you look at marriage laws, they are what they are in part because those laws help to support and facilitate a distinctive sort of social institution. In other words, marriage laws reflect, rather than create, the social institution in question.

When people get married, they want the legal supports that the state offers, because those legal supports help their marriages to be successful ones. These are legal supports that call upon society as a whole to treat the couple as a family, as a nuclear social unit. Their status as life partners is seen to generate a special claim on the goods required to carry out such partnership--including the right to live together in one country if the partners are of a different nationality (hence the right to sponsor a spouse for immigration) and the right to make crucial decisions for one another when one partner is incapacitated. The cluster of legal rights that constitute civil marriage all have a unifying purpose: to support a social institution of a particular kind.

So long as the cluster of laws in question were formed to support the distinctive sort of social institution that we call marriage, it makes sense to call the legal institution "marriage" as well. And if the state is to really get out of the marriage business, it seems that would mean that the state would stop supporting the social institution of marriage as such and start doing something else. Something more modest. We should expect that getting out of the marriage business and simply being in the civil union business would entail some change in the law.

What kind of change? Would the state do away with sponsoring spouses for immigration? What would it mean if the state were to stop supporting marriage and instead support something more modest? What effects would that change have on society? What reasons has the state had for being in the marriage business, and what would be lost if the state withdrew from that business altogether?

And if the state does not change the laws that govern legal marriage, but instead merely changes the name of the institution, we'd need to ask why. In other words, if the state is still in the business of legally supporting and nurturing the social institution of marriage, but it stops calling what it confers a "legal marriage," why would it do that?

The only reason I could think of would be this: calling it marriage acknowledges the reality of what it is doing with its legal practice in a way that communicates the marital status of the couple in a distinctive way. It is one thing for a church or a subculture to call the couple married. It is something else for the state to do so. When the state does so, it's "official."

The main reason to resist calling legal marriage "marriage" is because one doesn't want the marital status of at least some couples to be "official." Making it official has an effect. I suspect it increases the likelihood that the couple will stay together over time. It enhances the stabilizing effect of marriage. It makes it harder for some people to minimize or trivialize the important social commitments of others. It makes it more likely that people operating as a family unit, committed to being a family unit, will be treated as a family unit. It increases their opportunity to actually live as they have chosen to live.

From the standpoint of a state that is founded on liberal democratic values, ones that lift up equality and liberty, these effects can only be seen as positive. They are negative only from the standpoint of those who wish to deny equality and liberty to some portion of the population. As such, it seems to me that getting rid of civil marriage is a bad idea from the standpoint of liberal democracy. The state, in other words, has no reason to get out of the marriage business, even if certain sub-groups within the country have reasons to want them to.


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    1. Since I have argued in numerous other posts for the judgment that excluding same-sex couples from marriage is unjust discrimination, I didn't defend that claim here (so that I could focus on a related topic). You are right that the key issue is unjust discrimination and not merely discrimination, although in looser discourse "discrimination" is routinely taken to include the "unjust" qualifier unless on specifies otherwise. But it's probably sensible in these conversations not to follow that convention, even when the focus is on a tangential issue, since it opens one up to retorts that would be utterly misplaced if the "unjust" qualifier had been made explicit throughout.

    2. Actually, on rereading what I wrote, your concern seems to be more along the following lines: To say that conservative religious communities view marriage as "essentially discriminatory" while the state (and liberal communities) have a more egalitarian view is misleading, because the state and liberal churches also discriminate in marriage, just in a different place. I suppose, for clarity, I should have said, "essentially discriminatory with respect to sexual orientation." Still, I think that is implicit in the above. If not, I make it explicit here: The state is moving towards a practice which treats marriage as neither the kind of institution that is by its nature essentially discriminatory on the basis of sexual orientation nor as one in which discrimination under the law can be justified by appeal to any of the foundational values of a liberal democracy. If the state continues to call what it confers marriage, and continues to treat it this way, that communicates a message about marriage--especially about what it is--that is at odds with the position adopted by conservative churches. While conservative churches remain free to practice their own idea of marriage, the normalization of one in which marriage is not essentially discriminatory with the respect to sexual orientation will likely lead to such practice being progressively viewed with disapproval. And a state practice that is not discriminatory with respect to sexual orientation, if it is a practice that is explicitly viewed as conferring marriage, will likely have this normalizing effect.

      In other words, society is more likely to view discriminatory practices of conservative churches as unjustified when and where the state engages in similar practices in a way that does not discriminate in the same way.

    3. You can probably easily work through the whole blog post and add the proper qualifiers to "discrimination" as needed. Putting things that way is clumsier but more philosophically precise--and what I would have said were I writing a professional philosophy paper on this topic rather than a blog post.

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  3. You say above that gays and lesbians "don't have and couldn't ever form an intimate partnership" with someone of the opposite gender. Isn't this obviously false?

    Throughout human history, the large majority of our gay and lesbian brothers and sisters have---either because of arranged marriages, cultural expectations, sincere religious or ethical beliefs, or a desire for biological children---chosen to marry spouses of the opposite gender. The idea that sexual attraction is the primary or best reason to choose a marriage partner is a feature of contemporary Western society, but historically it has not been the norm.

    Now you may not approve of these cultural situations, but to say that the marriages which resulted were not "intimate partnerships" seems plainly incorrect. These relationships involved physical sex, raising children together, and often I imagine a strong emotional bond and friendship between the persons in question. How is that not an "intimate partnership"?

    I find it ironic that a supporter of gay marriage would make such bigoted and hurtful comments regarding the practices of a sexual minority which you disapprove of. Couples like these can be monogamous, loyal, faithful, and fruitful---but you are calling the very validity of their partnerships into question! Aren't you doing the very thing you condemn in others?

    1. You are commenting on a parenthetical remark in which I was attempting to be brief so as not to distract attention from my primary focus. I chose to offer, in parentheses, a very quick gloss on a line of argument I've developed more fully elsewhere.
      Apologies if this led to putting matters in a way that led to you to misconstrue my point.

      By "intimate partnership" I had in mind a sexual partnership between persons who were romantically and sexually attracted to one another and who formed a partnership in part characterized by a commitment to nurturing and expressing romantic and sexual intimacy over time (as well as other forms of intimacy).

      It is still possible to have sex with someone who falls outside the entire class of people towards whom you have sexual feelings--but to do it and do it consistently typically requires fantasy and pretense--that is, one pretends to be having sex with someone other than the person one is having sex with. Thus, the sex is not an intimate sharing of two selves (how can you be sharing yourself with another person if you are pretending that the other person is someone else?). As such, it does not qualify as intimate in the sense I have in mind.

      A relationship built around such sexual interaction is possible, but strikes me as rather sad. If one of the partners IS sexually attracted to the other, it's even sadder. Pity, rather than condemnation, seems the appropriate response in such cases.

      In any event, the distinctive good that marriage confers--recognition of partnerships characterized by romantic and sexual intimacy in the indicated sense--IS being denied to gays and lesbians so long as marriage is restricted to heterosexual pairings.

      For a fuller explication of the argument I was gesturing towards in my parenthetical, you can check out this post or this one.

  4. Stranger at the TableFebruary 6, 2014 at 10:52 AM

    I'm the same commenter as Anonymous above. Having read the other posts you linked to, I don't think I've misconstrued your point at all.

    I do still find it quite striking that your "distinctive good that marriage confers" is so modern in flavor, a formulation that most cultures would not have recognized. Procreation, yes. Companionship, yes. Continually falling in love with a person whose body perfectly matches your "type"? No sensible culture has ever suggested this is the primary purpose of marriage. The contemporary feeling that this is the primary purpose of marriage is doubtless a main contributor to the divorce rate. This "romantic" aspect of marriage seems far more fragile and impermanent then the types of "love" which I identified. Sure, it's great when you can get it, but most couples go through periods of time when they don't have it.

    But you'll say that gay people can't have feelings of romance and sexual attraction for someone of the opposite gender. I beg to differ. Up until I met my current spouse, my spontaneous sexual attractions or fantasies were nearly 100% towards males (largely minors, by the way---something which made the idea that there's nothing to be done about one's natural orientation particularly unappealing). Yet, I discovered that in the actual context of a relationship with a woman (whom I of course did not conceal this issue from) that sexual feelings for her were possible. I found that tight embrace with someone you care about triggers pathways in the brain towards arousal. I married her, and everything turned out fine. I do NOT fantasize that she is a man, or anything like that. Perhaps you know some specific people who did that, but you shouldn't generalize that into a stereotype about all of us.

    Also, you should be aware of selection bias here---the relationships like mine (and I have a friend in common with at least one other successful case) which succeed tend to keep private, whereas the failures tend to be more public. You won't see me sharing my story at a Gay Alliance club anywhere, or in the news because I brought a callboy home and got a messy divorce.

    Perhaps you would therefore say that I'm "really" a bisexual---and I suppose in a sense you would be right---but that strikes me as begging the question with a definition. Obviously if you *define* a gay person as someone who immutably can never love a woman, than that's true by definition, but then I highly doubt that this can be diagnosed by kids in high school based e.g. on responsivity or lack thereof to porn.

    In fact I find the whole concept of "sexual orientation" a singularly unambiguous and unhelpful concept. I don't mean to suggest that there is no such thing as orientation, of course there is. But the idea gets people to fixate on causal sexual fantasies as being somehow definitive for who they are. But I think that healthy sexuality is something that you build up with a specific person over time, over the long haul. Has my sexual orientation "changed"? With respect to strangers on the street, probably not very much. But who cares? The important thing is that I am sexually interested in my wife. I find our sex life very enjoyable and stimulating (not perfect, of course, but whose is? that's not the standard.) I don't want your pity since I am quite happy, thank you very much.

  5. It is not my intent to generalize but to identify a class of people for whom a marital institution limited to heterosexual couples excludes members of that class from enjoying goods that marriage makes available to others. To make this case, I do not need to make generalizations about everyone who self-identifies as gay. There is obviously immense diversity here. When I talk about sexual orientation in my classes, I represent it in terms of a field defined by two independent variables: degree of attraction to the opposite sex and degree of attraction to the same sex. I then divide the field into four quadrants (asexual, heterosexual, bisexual, and homosexual) but not the room for variation even within each quadrant.

    It may well be that you fall either into the bisexual quadrant or the homosexual one but edging towards bisexuality. Either way, the reality of your experience does not determine whether or not there is a class of people who, unlike you, have so little opposite-sex attraction that they cannot sustain romantic feelings for someone of the opposite sex or enjoy heterosexual sex absent fantasy. But I have enough friends whose self-reports of a lifetime of attempts to "play straight" establish that the class I have in mind is real and not trivially small. I do not mean to say that all with same-sex attraction fall into this class (I know plenty of people for whom this is not true), nor do I need to say this to make the case I want to make.

    If it sounded as if I was generalizing about every person who self-identifies as gay or lesbian, I apologize for conveying that impression. I wish you well on your relationship and hope it continues to be a source of meaning for you.

    My argument is not much affected by the fact that the good of having one's intimate partnerships (defined as I do above) recognized and supported by law hasn't been a central concern of marriage in other societies and historical eras--so long as it is a good that marriage as it exists today is making available to some while denying to others. And such intimacy clearly has become a normatively central feature of marriage in the modern Western world. If you haven't read Stephanie Coontz's MARRIAGE: A HISTORY, it's worth a look on this topic.

    The deeper issue raised by your remarks here has to do with the coherence of making romantic intimacy as central to our understanding of marriage as it has become. It certainly true that romantic idealism about marriage has led to false expectations and subsequent disappointment. But a partnership defined by romantic and sexual intimacy needn't be idealized artificially. Consider a relationship that, in the beginning, is characterized by strong sexual interest and romantic feelings--that complex of intense emotions and desires we call "being in love." Predictably, those intense feelings fade into something less all-consuming. The couple pursues various individual projects that lead to less time together. Maybe kids become the focus for several years--and tag-team parenting so that the other partner can do other things leads to little time together. Before long the couple are almost strangers to one another. But they remember those strong feelings and want them back, and so they work on rebuilding that closeness--in part fueled by the memory of what was so rewarding and meaningful to them both. It never is exactly as it was at the beginning, but a settled affection is layered with moments of strong romantic feeling, and a mutually satisfying sex life continues to be a source of closeness even if it is nothing like the intensity and frequency of early in the relationship.

    A relationship of that sort fits what I have in mind by an intimate partnership, and is far more realistic than the idealization that leads to so much disappointment. And this more realistic kind of intimacy is just as unattainable as an unrealistic ideal with a partner who falls outside the class of those towards whom you have sexual and romantic attraction.

    1. At the end of the first paragraph of the above comment, the phrase "but not the room for variation even within each quadrant" should have been "but with room for variation even within each quadrant." I think I was changing it from "not without room" and decided the double negative was unneeded--but failed to fully change the sentence accordingly.