Home > Gay Marriage > Homophones, Homosexuals, and the Essence of Marriage

Homophones, Homosexuals, and the Essence of Marriage

Some days I feel a bit radical and think the state should just get out of the whole marriage business altogether – problem solved. But I have some sympathy for the conservative case that state sanction is a useful encouragement of a valuable institution. Then again, would people pushed into marriage by such incentive really be in society’s interest? Regardless, if the state is going hold the official stamp of approval it seems unjust to prohibit same-sex couples from participating.

Previously I praised Judge Vaughn Walker’s decision that found that the state has no legal cause to deny homosexuals the right. A reader, Cyberquill, protested that creating a new right was unwarranted given the traditional definition of marriage. We proceeded to have a long debate on the topic in the comments if anyone is brave enough to dive in. Recently he refined his argument and sent us the link. He infuses the argument with a bit more flourish than typical but his argument rests on the standard case that granting the right through courts just opens it up to everybody and dilutes the institution making it essentially meaningless. Thus, if a constitutional right to marriage exists for homosexuals, why not for ketchup bottles? Yes, that’s really his argument, but its reasoning is not that uncommon.

Since marriage itself would remain legal in Connecticut and the laws of the land must apply equally to all, how could it be constitutional to permit marriage for some but not others solely based on who or what they are? What if the law were to ban marriage between Heinz and Heinz but not between Heinz and Hunt’s? And even if it applied to ketchup across the board, marrying ketchup with mustard or mustard with apple sauce would still be allowed.

Samuel Johnson, evil genius?

The provocative and game Cyberquill considers noticing that  “marriage” is a polyseme a profound and meaningful observation. Following his logic, he’d have you believe that we need a constitutional amendment to prevent homonyms from breaking the binding of society. I admire Strunk and White as much as the next guy, but I never thought verbal traditionalism carried such high stakes. As a resident of  Massachusetts, where we love Barney Frank but (apparently) hate Samuel Johnson, I await the linguistic apocalypse.

Until the armageddon, let me tempt the fates further by explaining why traditionalists miss the essence of marriage.  But how is one to decide what properties make up the fundamental components of marriage?  Cyberquill – after partially conceding marriage’s varied history – believes marriage is defined by numbers and gender. Why? I suppose it’s convenient to his argument. It seems he’s confusing marriage’s participants for its properties. Given his fetish for tradition allow me to reach back through history to Plato and Aristotle. They taught us that purpose is the crucial underpinning of nature. Teleology, not lexicography, ties the knot of marriage.

In PGA Tour v Casey Martin, the justices sought to determine the goal of golf in order to decide whether a handicapped golfer should be allowed to untraditionally participate (use a golf cart) in the official tournament. Was walking essential to the sport? More broadly I could ask what relationship the participants themselves have for the purpose of marriage.

If the state has an interest in regulating marriage, we must ascertain what the purpose of marriage is for the state. I return to Judge Walker’s decision. He writes,

The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace.

I’ll leave it to lawyers to certify whether that squares with legal precedent, but it appears that the purpose is clear and is relevant to the state interest. Permitting same-sex marriage satisfies that criteria, whereas “automarriage,” condiment matrimony, and other extreme unconventional unions don’t.  Some religiously motivated campaigners might argue procreation defines marriage’s telos. But unless the state were to ban all infertile couples, it seems tailoring the prohibition to gays won’t fit with the Fourteenth Amendment.

Marriage need not be arbitrary or trapped in the inertia of orthodoxy. The union of equality and marriage share a purposeful bond. Although I still might leave ketchup off the wedding menu.

  1. Niemsters
    April 25, 2011 at 9:14 pm

    Judge Walker’s decision and definition only confirms his own personal bias. If we are supposed to have unbiased juries, shouldn’t we have unbiased judges? Shouldn’t the opinion reached by the California Supreme Court, which says that denying the word “marriage” to same sex couples does not deny them any of their rights, hold more weight? Especially on a subject that Californians have voted on not once but twice in a decade! If there are different privileges that Married couples enjoy that same-sex couples do not, they should be made equal. But the fight for same-sex marriage is not about granting equal privileges, it’s about forcing society to condone homosexuality.

  2. Deana
    April 25, 2011 at 9:47 pm

    Niemsters, allowing same-sex couples to you is “forcing society to condone homesexuality”? Whether you agree or disagree with a couple’s marriage–gay or straight–is impertinent and irrelevant to their right to get married. For example, maybe I don’t agree “Mr. and Mrs. Jones” are a match made in heaven, but I would never impede on their right to be married and enjoy the same benefits as everyone else.

    Daniel, great blog post today. I am glad to be living in Massachusetts and hope more states will follow its lead of allowing same-sex marriages. In fact, I find the word “allowing” insulting, as if anyone is even doing something wrong. Marriage on a piece of paper is primarily about legal benefits. A couple who loves one another to such an extent is already married at heart. To prevent anyone from these legal rights that frankly affect no one else but the couple is hateful.

  3. Niemsters
    April 25, 2011 at 10:56 pm

    Deana, would I be correct to assume you also are a supporter of polygamous marriage(whether fundamentalist Mormon, Muslim, or based on Tribal African traditions)? Since you would never impede on the rights of anyone to be married and enjoy the same benefits as everyone else… I could have used the example of guys in Japan wanting to be legaly married to life sized dolls, but that issue hasn’t quite reached America yet.

    • Dave
      April 26, 2011 at 11:18 pm

      Even if the dolls issue did reach America, it’s distinguishable by dint of the fact that it involves a human being and a non-human object. So, unless you mean to imply that homosexuals are sub-human things, I fail to see the analogy.

      • Niemsters
        May 1, 2011 at 4:39 pm

        It’s easy to reply to the ridiculous example. But why should Polygamy not be legal, if same-sex marriage should? Is it too small of a minority that it shouldn’t be included? (it’s actually probably more common than homosexuality if you consider the whole world and history.) Is it bad for children? (A large part of society thinks being raised by a same-sex couple is bad for children.. although it’s politically incorect to say so.) So do you support polygamy or not?

  4. April 25, 2011 at 11:46 pm

    For the record, I used ketchup as a playful analogy, adding that the Constitution applies to persons only, and that condiments clearly aren’t persons.

    The purpose of marriage and whatever interest the state may have in regulating it is entirely beside the point when it comes to the principle of equality under the law, a principle which simply holds that the law must apply equally to all. Therefore, if person A is allowed to do something, person B cannot be denied to do the same. That’s what “equality” means. Nothing more, nothing less.

    Therefore, if person A has the right to marry, person B cannot be denied that right. And if society wishes to slap restrictions on who can marry who (such as restrictions regarding the marriage of minors or polygamous unions) these restrictions must also apply equally to all.

    Whether you want to acknowledge it or not, every disputant in the marriage debate bases their argument on a very specific definition of the term “marriage.” You can deride my obsession with definitions and impute to me an irrational fear of the linguistic apocalypse all you want, but the fact remains that without a definition of the word “marriage,” there’s no way to determine whether person B is denied that which person A is allowed to do, i.e., whether an equality violation exists such that a judge can overrule a vote by the people.

    Anyone who makes the argument that gay couples have a consitutitional right to marry, defines “marriage”—either consciously or subconsciously—as a union between two people (as opposed to a union between one man and one woman) and contends that this is the very definition which the principle of equality under the law implies.

    In my post I simply presented my case of why it makes no logical sense to me that this very definition should be the one which marriage equality implies.

  5. April 26, 2011 at 12:49 am

    @ Niemsters & Cyberquill: It seems a bit unnecessary to rehash the whole debate we had last time – I encourage everyone to read or re-read my original post on Walker’s decision and the subsequent debate between CQ and I.

    But allow me to just point out again that, yes, of course marriage needs some sort of definition but it seems odd that you two and others decide to define it by its participants rather than its purpose. If in fact marriage’s purpose (in the eyes of the state – that’s what is relevant for determining the legal right after all) has to do with promoting stable families and the benefits those unions bring to the wider society. I’d be surprised to learn that the state had an interest only in promoting stable households for heterosexuals but not homosexuals.

    Those other forms of marriage you can imagine shouldn’t be restricted because of some traditional rule that people shouldn’t marry robots or multiple partners, but rather because those types of relationships don’t promote stability and positive externalities for wider society. (quick note: I’m not saying a relationship is only good if it benefits society, but it only demands state encouragement if it benefits society) Take polygamy, I’d think polygamists would have a case if it was clear their relationships didn’t cause more harm than good. I don’t favor excluding polygamists because it’s icky or because it’s nontraditional but because polygamy results too often in abuse of women and children (I expand on the harms in the debate).

    So Niemsters, let’s quit pretending limiting marriage to heterosexuals is about merely preserving tradition – how absurd would that be if it was the case? If you think all non-heterosexual relationships should be prohibited, I imagine you do so because you think there is some harm in doing so. If that’s the case, you’re on solid legal (or, more importantly to me, moral) ground. Just demonstrate the harm and you’ve provided a rational reason to limit marriage. Until then there is no basis in arbitrarily preserving 1 variation of the status quo.

    • April 26, 2011 at 12:44 pm

      Look, the state can promote whatever interest it wants. But who exactly is this entity called “state” other than the people who comprise it? Who gets to decide what’s in the best interest of the state? In our political system, the people of that state are in charge except on issues that are set forth in the U.S. Constitution, whose entire raison d’etre it is to remove certain issues from majority determination, or federal law, which must comply with the U.S. Constitution.

      What I’m talking about—and the only thing I’m talking about regarding gay marriage—is the concept of equal protection under the law as set forth in the U.S. Constitution, specifically the question whether a democratic vote on same-sex marriage is eligible to be overturned by a judge or a team of judges on constitutional grounds, which, for the reasons I stated, I argue it is not.

      • April 26, 2011 at 3:46 pm

        Yes the state is, of course, comprised of people, but the majority cannot democratically decide to exclude certain classes of citizens from fundamental civil rights. The 14th Amendment, therefore, removes this issue from majority determination. Marriage is, in fact, a basic civil right. See: Loving v. Virginia (decided 9-0): “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival….”

        And just to clear something up for you, the judiciary is a co-equal branch of government, so despite your suggestion to the contrary, they can also decide questions of state interest.

  6. April 26, 2011 at 4:46 pm

    What do you mean, my “suggestion to the contrary”? Is there something wrong with my English? I suggested, quote, that “in our political system, the people of that state are in charge except on issues that are set forth in the U.S. Constitution, whose entire raison d’etre it is to remove certain issues from majority determination.” This, of course, means that the judiciary can overturn the will of the people if that will runs counter to what the Constitutions says.

    My entire argument rests on the 14th Amendment. Do you understand what I’m saying at all?

    • April 26, 2011 at 5:05 pm

      My post wasn’t meant to be a supreme court hearing. I was making a philosophical/moral case, imbued with some legal precedent. As none of us is a legal scholar I’m tempted to argue that you also don’t know what you’re saying at all, but I’ll let readers form their own opinions. I’ll just reiterate that it is my understanding that since marriage is a basic civil right grounded in the constitution (that’s legally uncontroversial) it seems to qualify as an issue “set forth in the U.S. Constitution” that is removed “from majority determination.”

      Therefore, the question comes down to what the definition of marriage is. I’m arguing it is defined by its purpose, you’re arguing it is defined by its traditional participants (which suggests it could exclude people based on race or some other involuntary trait if customary). Andrew Sullivan put it best, “I think it is true that the proponents of same-sex marriage have been defining marriage by what it includes, and the opponents of same-sex marriage have been defining marriage by the people it excludes.”

      • April 27, 2011 at 2:57 pm

        My post was meant to be a Supreme Court hearing and only that. To respond to it with a philosophical/moral argument is to respond to an apple tree with an orange grove.

  7. Antonio Braganca
    April 29, 2011 at 4:49 pm

    If we were only to consider marriage as a “religious” ceremony and a civil union as a legal matter, then religious institutions could discriminate any which way their god or their interpreters saw fit. On the civil union side the society without its religious chains could loosen the religious moral binds and allow a more enlightened form of unions.

  8. Niemsters
    April 30, 2011 at 1:30 pm

    @Antonio, seperating Marriage from a legaly binding civil contract would allow religions to define marriage however they liked as long as legal benefits were only attached to “Civil Unions”. Some churches would only perform traditional marriages, others same-sex, others polygamy. But religions could push the envelop further marrying underage people, animals or whateve else they wanted (it can be very easy to start a “religion” or church)… although these would not include the legal rigths and benefits of a government sponsored Civil union the ramifications would confuse marriage to the point that it would be compleatly destroyed and meaningless.

    @Dan, your argument is that marriage should be “defined by its purpose” as opposed to its participants. This is fundamentally flawed. I’m at a loss to think of anything that is defined by it’s purpose as opposed to what it physically is. A hammer is not a hammer because it can hammer nails… because I can hammer nails with anything hard. A car is not a car because I can drive it places fast, because other things can be driven fast as well. My Grandma is not my grandma because she makes me cookies, but because she is my parents parent. I’m not a Husband because I am the bread winner and protector of my wife (there have been times she’s been the main bread winner!) but because I am the man in the marriage. While roles like “Manager” could be said to be defined by their purpose (Managers manage) this isn’t true. Because any staff at a grocery store or office can manage things or people, but a Manager is given authority from a higher power. So you could argue that the Government, a higher power, should define marriage differently for moral reasons… but baising the definition of marriage on it’s purpose is faulty. Because other institutions, of social groups create “stable households”, and this is not the purpose of marriage. What if a marriage didn’t contribute to stable housholds, as many don’t? Additonally, both your blog and Judge Walkers argument make it sounds like the Family is subserviant to the Government. Marriage is good because stable families are easier to govern, to paraphrase Judge Walker. This is wrong on numerous levels. The debate on same sex marriage is always heated and can easly go off on tangents. So I wanted to try to address your actual argument on what makes up the “essense” of marriage, because it’s a good discussion to have.

  9. Jack
    April 30, 2011 at 5:41 pm

    Organized religion like Gov. seeks to control society. The traditional sense of Marriage (if I may use that term) involving 2 people of the opposite sex allowed for procreation in a stable family nucleus. In terms of a religion’s survival, you get 2 people of like indoctrination who hae committed themselves to each other (in the eyes of the almighty god or seek damnation for eternity)who will have children (not much else to do for fun in those days, and masturbation was/is sinful). These children will be raised from day 1 under the same mores,rules etc.. as their parents. In other words this was/is just a way to keep the status quo and to make sure that the religion would spread amongst the growing population. Isn’t this part of the argument that people make about the “social fabric” of today’s America? Yes, we have a constitution like we have a bible. Both lay down some rules of how to live. We all read both books and yet come up with different interpretations. I would argue that the majority of people accept that homosexuality is “ok” and therefore should be allowed to be married. I would also gather that most people still think that marriage is between “2” people who are “adult” and “consenting”. I don’t think the majority think it is ok to marry your dog or the red-headed sex doll you bought from the adam & eve website.

  10. April 30, 2011 at 5:49 pm

    @ Neimsters

    Thanks for responding to narrowed topic of the blog post – this is the debate I was more interested in having (for the other debate I refer people to my original Judge Walker post/comments). Unfortunately I think you’re arguing against a position I’m not quite taking. I take responsibility for that however: I was a bit careless in a comment where I was more careful in the body of my actual post. I don’t mean to argue that marriage is solely defined by its purpose – I’m arguing the essence of marriage for the state is its purpose. Of course, the essence of marriage for its participants is about love, family, and whatever personal qualities the members want from it. The governability of the population has NOTHING to do with marriage for the couple.

    But the state has created a legal marriage institution and thus we must decide what interest the state has in regulating marriage. In contrast, your grandmother isn’t a state-created institution where we must ask that question. Nor is a hammer, but I’d be tempted to argue that the essence of a hammer is found in its purpose as well… maybe because hammers are also created by man for a purpose. Hammers certainly don’t have to be the common shape we all think of – if it didn’t have two prongs in the back or cylindrical face you could still call it a hammer. If a ball-peen hammer and a sledgehammer can both be hammers, a straight marriage and gay marriage can both be marriages. You certainly don’t derive the essence of hammers by who uses it – it’d be even more puzzling if you defined it completely by its users.

    If the relevant essence of marriage for the state is found in its telos, it’s important to figure out what that purpose is. It seems to follow then that we should look to what the state’s interest is in marriage. I think we can agree that our communities are better off with the stability marriage brings to families and, when applicable, their children. The state has an interest in fostering healthy environments for all children. Excluding gay couples from marrying harms children of gay couples and gay children, whereas allowing same-sex marriage does nothing to harm heterosexual parents or children. Which brings me to the question you ducked before: Is there any reasonable prospect or evidence of harm in allowing gay marriage?

  11. May 3, 2011 at 1:58 am

    –sorry i couldn’t get this reply directly under your comment–

    Niemsters :

    Is [polygamy] bad for children? (A large part of society thinks being raised by a same-sex couple is bad for children.. although it’s politically incorect to say so.) So do you support polygamy or not?

    It seems we’re getting a little more clarity, which I’m happy about. Polygamy should be prohibited precisely because its history demonstrates that it harms women and children. There are also strong arguments that it would cause a social wide problems due to creating an unstable sex ratio among other reasons. In contrast, no evidence exists that the institution of gay marriage causes harm. It doesn’t matter how large any majority is that thinks gay marriage is harmful – in order to deny citizens their fundamental right to marriage the onus is on the state to clearly demonstrate harm. Otherwise if we based marriage rights on tradition polygamists could marry while interracial couples couldn’t. It’s the whole reason we have the 14th amendment.

  12. jessmacster
    May 5, 2011 at 9:48 pm

    To say that polygamous marriages should be banned because its history contains abuse is to say that any relationship where abuse has been demontrated should be prohibited. Should we outlaw marriages between alcoholics because their histories demonstrate much higher percentage of child and spouse abuse? Should lower-income couples be denied marriage because statistically there is more abuse present in those relationships? No, but what we should and do outlaw is abuse. Many reported abuses in polygamous relationships are precisely those of people who are determined to break the law and live on the fringes of society and their actions should not be condoned or excused. Abuse of children is against the law. But an appropriate, legal polygamous relationship would be between loving, consenual adults who desire to raise a family and contribute to society.

    Neither same-sex nor polygamous marriage (sorry, Dan ;)) is something I personally condone, but I don’t see how you can allow the one and exclude the other based soley on the purpose of marriage.

    • May 5, 2011 at 10:23 pm

      What I understand of polygamous relationships is that they are necessarily harmful to society’s interests. In contrast, individual people aren’t inherently alcoholics or abusers (we also can put abusers in prison). I also have no problem prohibiting alcoholics and abusers from adopting children. For all we know, the stability of a marriage can lead people to quit being alcoholics. Laura Bush, for example, refused to marry George Bush unless he gave up drinking. I take the former president at his word that his marriage gives him a source of strength to stay sober. As I said before, the burden falls on the state to demonstrate that banning entire classes of citizens from marriage is justified on consequential grounds.

      I know it’s probably not your conscious intent, but it really is too much to compare gay americans with abusers and alcoholics. Although it might be worse than that. Isn’t your position that you’re wiling to grant abusers and alcoholics marriage licenses but not homosexuals? If it is true that polygamous relationships contribute to family and society, I’d be willing to consider granting it; it just doesn’t seem likely to me.

      If you really think same-sex and polygamous marriages do no harm but benefit society but should still be banned, what you’re really saying is that you’re willing to sacrifice what’s good for children and you’re indifferent toward the love between my fellow humans because dogma and tradition are more important. I’m trying to read your argument in the best possible light, but I don’t see how the application of your logic can be understood in any other way.

  13. jessmacster
    May 5, 2011 at 10:50 pm

    I don’t know how you drew that out, but I did not ever compare homosexuals to alcoholics, I compared polygamists to alcoholics. Polygamy is a choice, and I believe alcoholism is a choice. And your choice of words is perfect– what you “understand” of polygamous marriages– which is not much further than those fringe societies which I specifically condemned in my original post. Additionally in my comment I did not say that we should ban gay marriage, I said that we should not ban polygamous marriage.

    Also, to say that my comment means that I am willing to sacrifice what is good for children is to suggest that I believe that homes with polygamous or same-sex marriages are preferable to a home with one loving mother and one father, which I do not– not harmful, perhaps– but not preferable. As to me being indifferent toward the love toward “your” fellow humans, I again never said that same-sex marriage or polygamous marriage should be banned. I said that if one is legal, they should both be. You did a lot of reading between the lines. You should avoid personal inferences in order to comment accurately.

    • May 5, 2011 at 11:27 pm

      I apologize if I understood your position incorrectly. It seemed that since you don’t “condone” same-sex or polygamous marriage you favor its prohibition. If you think we should allow gay marriage (the topic of my post), I stand corrected. So, to be clear, are you saying you think any legal bans of gay marriage should be lifted? If not, I fail to see where I misread you.

      You seem to recognize that polygamy is a choice while homosexuality is not, which is an important reason why these are separate questions and partly why I failed to see your analogy. Just to tidy something up, even if households with 1 mother and 1 father are preferable to same-sex households (I’m not sure if there is enough evidence to say conclusively, but let’s put that aside) that is irrelevant to the question of gay marriage. Allowing gay marriage would have to be specifically harmful for the state to have a reason to deny a fundamental right to a class of citizens. There is plenty of evidence that same-sex parents aren’t harmful to children and they’re certainly beneficial compared with the absence of parents for kids without any.

      It’s also important to remember that adoption and marriage are separate questions. The existence of same-sex marriage without children would have to be harmful to society to be a sufficient reason to ban it. I’m not even sure how a case could be made that argues that. My case seems to be consistent, same-sex marriage is not harmful to society so society has no reason to prohibit homosexuals from practicing their constitutional right. Polygamy seems to create deleteriousness issues for society so government has an interest in limiting unions to two members. If I’m wrong about the latter, I’m willing to reconsider my position.

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