Genderless Marriage
posted by Katharine Baker
Justa quick response to Deborah Hellman - I appreciate your kind words and I recognize the difficulties in forging some kind of consensus when people have such differing views on the nature of the good and human flourishing, but the
assumption that equality doctrine or equality principles can ensure that justice be done because we can all agree that people need to be treated with equal respect fails to understand the most basic argument that opponents of same sex marriage make. To those who have differing opinions than me (and probably most readers of this blog) about the nature of the good with regard to marriage, it makes no sense to say same sex “unions” should be treated the same as heterosexual “unions.” To many opponents of same sex marriage, the essence of the union is its heterosexual nature. The fundamental debate over marriage in this country is, for many, a disagreement about whether the phrase “genderless marriage” is an oxymoron, or an ideal for which we all should be striving. To assume that you can elide that disagreement by simply saying all marriages are “unions” is to assume away the basic disagreement about the essence of marriage.
October 22, 2012 at 3:50 pm
Posted in: Symposium (Normative Jurisprudence)
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Responses (4)
Matt - October 22, 2012 at 7:20 pm
I’m happy to let Deborah Hellman speak for herself on how she understands this, but this bit,
The fundamental debate over marriage in this country is, for many, a disagreement about whether the phrase “genderless marriage” is an oxymoron, or an ideal for which we all should be striving. To assume that you can elide that disagreement by simply saying all marriages are “unions” is to assume away the basic disagreement about the essence of marriage.
Seems to me to just miss her point, as far as I understand it. My understanding of the “liberal” view is that it would be just as wrong for the law to set up “genderless” marriage as an ideal we should strive for as it would be to set up “gendered” marriage. Rather, people ought to be free to pursue the ideal that they think will best lead to a good life for them, unless it can be shown that doing so will cause some sort of serious wrongs to others. This isn’t to “assume away” the difference, but to say that it ought not be the state that decides which account is right. So far, the state has most often said that it’s the “gendered” account that’s right. But allowing same-sex marriage doesn’t mean that marriage is now “genderless” or at least need not. To think so seems to me to pretty clearly be a mistake.
K. Baker - October 22, 2012 at 8:57 pm
Matt –
I think the entire conversation is meaningless unless we have some mutual understanding of what the term marriage might mean. In many cultures historically, and still today in some places, marriage means one man and many women. In many cultures historically, and still today in some places, it means significant subordination of a woman to a man as a legal and cultural matter. I don’t know anyone who would maintain that marriage means those things in the United States today. But I do know of many people who would say that marriage means one man and one woman. We can say, as I think you suggest that the liberal position requires, that everyone can define marriage for themselves, but then the law needs to get out of it completely, doesn’t it? What would a marriage license from a state mean if everyone could define marriage however they wanted? Can anyone we feel like be considered a spouse for Social Security purposes, for immigration purposes, for health insurance purposes?. For better or worse, this country relies on a private welfare state – that is, the family – for the administration of many – if not most – social welfare benefits. If the state has no role defining family, then surely we need an alternative social welfare system. Even with an alternative social welfare system, I would argue that the state should be involved in regulating the family – and therefore defining marriage to some degree – because without state regulation, social norms, particularly gender norms, are likely to severely disadvantage women in the event of relationship breakdown.
Matt - October 23, 2012 at 10:51 am
Katherine,
I agree that it’s important to have legal definition of marriage. But, as you point out, there is a contested issue as to what “the good” of marriage would be (to use a bit of unlovely jargon.) The cultural and historical issues are of some relevance, but obviously can’t decide the issue. In such cases, why not follow the strategy of abstracting up? That’s what Deborah Hellman proposes (so far as I understand here) and is the “political liberal” approach. The idea is that since we can’t agree on the substantive definition, we agree on a more abstract one. Now, this doesn’t mean that “everyone can define marriage for themselves”. (I can’t say, “marriage is one man, his VW micro-van, and a moose!”) Thinking this is to confuse one particular conception of the good with a framework that abstracts up from a contested view. So on this count it’s not the case that the law “needs to get out of the way completely” (that’s just a misunderstanding of the view) and there’s no objection to people thinking that marriage is “one man, one woman”. People are free to think that, because it will still fall under the abstract general concept. They simply won’t be free to require _others_ to think that. Again, I hope that Deborah will step in and say if I’m getting at what she has in mind or not, but I think you’ve misunderstood her argument in a pretty important way.
(I should add that I haven’t read West’s book yet, though after looking at the contributions here I hope to have the chance to do so soon. If Deborah is right to suggest that West is proposing, for the law, a comprehensive account of the good of marriage that proponents of “traditional” marriage can’t accept, then this is something that should be opposed. But that’s not what Deborah is proposing, I think, nor am I.)
Jess @ Nevada Divorce - December 15, 2012 at 3:42 pm
To put heterosexual marriage above homosexual marriage in any sense is a bigoted policy. Simple as that.
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