The Virtue of Marriage
posted by Ari Waldman
I have been remiss in many of my posts, talking sometimes about theory and then getting caught up in the same-sex marriage debate in New York, that I forgot that one of Co-Op’s great assets is close analysis of case law. The splendid Turner symposium is only one example of that. So, I thought I would combine an important case with current events.
Yesterday, I had the wonderful opportunity to participate on a conference call with a few pro-gay marriage advocates in Albany and the staffs of some senators. This was probably more a who-you-know, rather than what-you-know opportunity because there are far more experienced minds than mine working hard on same-sex marriage. I casually mentioned that I don’t think referring to my desire to join the institution of marriage as an issue of “rights” is all that persuasive to folks whose interpretations of religious texts make them wary or concerned for the rights of other religious people and institutions. After all, I said, by saying our rights should win out, we are not so subtly minimizing their rights, which have to be regarded as at least competing.
Speaking about marriage outside the rhetoric or rights — “marriage equality”, “we all have the right to marry the one we love” are just two of the common phrases, signs and lines you see at pro-gay marriage rallies — is a bit of a heresy in the gay community. It’s a heresy that I embrace and am starting to write about in my scholarship. It’s a heresy because freedom of choice and non-discrimination are not what the marriage debate is about; those concepts only take us so far. Rather, it’s about whether my union is worthy of social recognition. To see this idea, we need look no further than Massachusetts’s landmark same-sex marriage decision, Goodridge v. Department of Public Health (but we do have to go after the jump!).
Chief Justice Margaret Marshall began her opinion granting same-sex couples the right to marry in Massachusetts using traditional rights language. The exclusion of same-sex couples from the institution of marriage runs afoul of “respect for individual autonomy and equality under the law.” We have the right to “choos[e] whether and whom to marry,” a right that “would be hollow… [if the state could] foreclose an individual from freely choosing the person with whom to share an exclusive commitment.” The issue seemed to be nothing more than right of the plaintiffs “to marry their chosen partner.” Very rights-based, very Rawlsian.
But, as I have said, the right to marry can take us only so far. If it were all about rights, why not take the state out of the equation altogether, leaving marriage to religious institutions? What’s more, if it were all about the right to choose, leaving the state out of making judgments as to who can marry, then there would appear to be no answer to the “polygamy is next” argument. Admittedly, I hate slippery slope arguments; legislatures draw lines all the time because, well, it’s their job. The point is, rights-based rhetoric gives them no reason to draw lines.
The real issue is associating marriage with social honor or recognition. I want to marry, as opposed to “civilly union,” not because the latter is awkward to say, but because there is a certain social virtue attached to the institution of which I want to be a part. Justice Marshall recognized this. To her, marriage is “one of our community’s most rewarding and cherished institutions,” and getting the state out of the business of marriage “would dismantle a vital organizing principle of our society.”
No, marriage should not be abolished, it should be expanded — another heretical word in the marriage equality movement — to the gay community. “In a real sense,” she stated, “there are three partners to every civil marriage: two willing spouses and an approving State.” That means that civil marriage is “at once a deeply personal commitment to another… and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.” Justice Marshall looked at what the institution honors. She found that it was not procreation — the elderly can still marry, as can the infertile — but rather she found that the institution honors the commitment of two persons, straight or gay. So much for the polygamy train.
Justice Marshall tells us much about the necessary role of virtue and community and honor in our society. It is true in Albany, where we must engage fence-sitters in language they understand. It is true online, where a certain lawlessness is having devastating consequences for women and gay and lesbian teenagers, most notably. This final point and the theoretical debate played out above is what my current paper is about. Sorry… couldn’t resist.