In considering gay marriage, focus on family

Plenty of those who oppose gay marriage can only cite Scripture to justify their position. In a secular state, such arguments will not be persuasive in the long term. But many proponents of gay marriage present equally inadequate reasoning; they criticize the legislation of Scriptural morality instead of providing positive justification. Implicit is the false idea that Scriptural morality is the only intellectual challenge to the institution of gay marriage.

It is certainly true that Scriptural morality bolstered the sodomy laws prevalent in America before the 1960s. And in the last 50 years, as these laws encountered more intense criticism, most states responded by reducing sentencing and enforcement, or repealing their sodomy laws altogether. The change culminated in 2003 in the Supreme Court case, Lawrence v. Texas, which, by invalidating remaining sodomy laws, constituted a defeat of the legislation of scriptural morality. But since then, only Massachusetts has recognized gay marriage. If Scriptural morality is the only challenge to the institution of gay marriage, why isn’t gay marriage now widely recognized?

The debate concerning gay marriage is more complex than a simple acceptance or rejection of religious dogma. In fact, it occupies the crossroads of the American identity. On the one hand, America inherited the English common law that conceptualized the family as the basic unit of society. On the other hand, the Declaration of Independence conceptualized the polity as a product of the consent of its basic units, individuals. Ever since Lincoln established the Declaration of Independence as the prism through which to understand the Constitution, these two conceptions have been fighting each other in the public consciousness and in the law.

A good example is the development of divorce law. Under common law, one could not obtain a legal divorce without providing a good reason and receiving the approval of a judge. But the purpose of government, according to the liberal philosophy of the Declaration of Independence, is to protect the individual right to liberty — which is clearly violated by common law divorce procedure. While the procedure prevailed for a long time, it increasingly became a farce. Jealous of their own liberty, couples routinely committed perjury to acquire the divorce they took as their right. From 1970 to 1985, no-fault divorce law swept the nation, adopted in some form by every state. Liberalism had triumphed over the common law.

Unsurprisingly, an increase in divorce rates followed the adoption of no-fault divorce law. And as the social sciences linked the broken family to most social pathologies, the ranks of those critical of the new law grew. The problem with no-fault divorce is two-fold. First, it allows for easy divorce where a little social pressure might have induced the parties to work through their difficulties rather than separating. Perhaps more problematic is that the heightened availability of divorce reshapes the public conception of marriage, undermining its status as a unique commitment set apart from other relationships. If the marriage bond may be so easily broken, it seems not dissimilar from other relationships, where loyalty is contingent upon the continued satisfaction of both parties.

Those who oppose gay marriage, therefore, do so for the same underlying reason that they oppose no-fault divorce law: They are worried that changes to the legal understanding of marriage will further undermine the public conception of it as a unique relationship set apart from all others. The opposition to gay marriage is not absolute; rather, it is contingent upon the presumed negative effects gay marriage will have on the societal understanding of marriage.

The problem is that, in a society increasingly conceptualized as one of rights-bearing individuals — one moving away from common law and toward the philosophical framework of the Declaration of Independence — marriage is understood as little more than a visible contract, a public declaration of mutual love. Proponents of gay marriage who lament that the absence of gay marriage “prevents gay couples from a public expression of their love for each other” thereby confirm the fears of their opponents, for the foundational character of marriage is entirely absent.

Under common law, in addition to having a foundation, marriage is a foundation. It is the liminal ritual by which a new social unit, the family, comes into existence. Those who oppose gay marriage are not motivated by the desire to prevent the public expression of mutual love. They simply maintain that marriage cannot be divorced from the family. This is not to say that family arising out of gay marriage is impossible. But gay family is less familiar, less obvious. So the opponents of gay marriage will only change their mind if gay marriage is understood as the foundation of a family. If proponents would focus on gay family, the acceptance of gay marriage might follow.

Peter Johnston is a junior in Saybrook College. His column runs on alternate Wednesdays.

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