On the Inevitable Legality of Same-Sex Marriage

ImageThree or four times a week I get an email from a prominent conservative organization, urging me to act now, either through contribution or activism, to protect marriage against its greatest threat: homosexual or same-sex marriage (which I will call SSM for the rest of this post). As I did with the Obamacare case, I’ve been listening to the Supreme Court oral arguments regarding the Defense of Marriage Act (DOMA) and California’s Proposition 8 (Prop8). From my understanding of the arguments and the culture in which we live, SSM is inevitable, but not for the reasons generally cited. That is, it is inevitable, but not because “young people” are more tolerant and the “old, intolerant killjoys” will eventually die out or lose influence.

Let me explain, and probably offend conservatives and liberals alike….

One reason why this debate has been little more than a shouting match has to do with the young-people-making-it-inevitable crowd. Because public opinion among the young is so strong, the reasoning goes, no arguments given by the proponents of traditional marriage are worth considering or refuting. The people that find them compelling are soon to be replaced by those that consider them baseless, so, one might ask, why bother? This, combined with the rhetoric of hate-labeling (traditional marriage proponents are accused of “hating” homosexuals or being homophobic), has made the debate even more poisonous than it naturally would be.

What separates my inevitability claim from the standard one is that mine is based on the arguments given by the traditional marriage proponents. I don’t ignore them, because those arguments are themselves the reason why I make the inevitability claim. The arguments for traditional marriage typically take the shape of three primary forms:

  1. Marriage as a permanent relationship between husband and wife has a long history that ought not be set aside to make room for SSM. This level of novelty is too dangerous.
  2. Biologically intact families (Father, Mother, and their offspring) are the natural foundation for society. Any attempt to replace the biological reality with a merely legal reality will, in the end, destroy marriage. (Not the individual marriage, but marriage as a cultural idea and ideal)
  3. There is not enough sociological data to show that children are not harmed by growing up in SSM homes. Thus, we should err on the side of caution.

To be fair to all those who give support to traditional marriage, we might also add a religious or moral objection of some sort:

4. The divine being one worships has forbidden SSM.

For obvious reasons, number 4 was absent in the oral arguments, though it is frequently heard in conversation and in pulpits. For this discussion, let us set aside 4 for the moment since, for those who find it compelling (as I do), it supersedes all other arguments for or against, and for those who do not find it compelling, no evidence in its favor (interpretation of sacred text) will be acceptable. Instead, I wish to focus on argument 2, and then use the analysis of 2 as a window to understanding 1 and 3.

A typical zinger in the marriage debate is the appeal to the divorce rate among traditional marriages. If you are so interested in traditional marriage, the SSM advocate prods, why the high divorce rate? Indeed, there is an instinctual connection between divorce and SSM. There is the feeling that, perhaps, marriage has already been destroyed by divorce long before SSM came along. And this gut feeling is, I believe, telling us the truth. Unfortunately, when one becomes aware of this gut feeling it is generally personal. One has parents who divorced, siblings or friends who divorced, or perhaps is oneself divorced. If marriage as an ideal is dead within a person’s own hopes and aspirations, perhaps it is truly dead for all. At least, this is what the all too personal gut feelings communicate.

But let us look closely at divorce once more, but with more objectivity, and compare it to reason 2 – that biologically intact families cannot be replaced with mere legal reality without also destroying marriage in the process. I once heard a speaker (name withheld) ably argue for reason 2. What, she asked, would happen if two women married each other and one had a child by insemination? Is the child the fruit of the marriage? What if the couple split up when the bio-mother fell in love with the bio-father? What if the non-bio-mother was declared by the court to be the more active child caretaker and was then awarded custody? A woman with no biological relationship to the child would have legally “kidnapped” the child from an otherwise stable, biologically intact family. If the bio-mother would continue to have children, this first child would be estranged from his own biological siblings living with his biological mother and father. The speaker rightly argued that such an outcome would be monstrous. The speaker noted that this very scenario has already happened in one of the states allowing SSM because in that state marriage is a legal, not biological thing.

And yet the reduction of “family” to a legal entity has already taken place decades before. It happened in two steps. First, a fault-only model for divorce makes divorces messier than they have to be. Once a married person makes the decision to leave they either have to catch their spouse in some moral indiscretion or fabricate one in order to have grounds to leave. Instead of just leaving, the marriage must first become dangerously toxic. This seems detrimental to all parties, especially since states with short residency requirements offer no-fault divorce. The goal – removing toxicity from divorce proceedings – is laudable. If someone is determined to leave, nobody can force them to stay, and they will leave anyway. The states are merely giving the option to leave less messily.

Second, both parents automatically retain financial responsibility for the children. In most cases, this means that the mother will raise the children and the father will pay child support. This also is based on laudable motives. Parents owe their children significant time and resources. Society rightly shuns the “deadbeat” dad. However, this responsibility is shared unequally. Even though divorce statutes often contain explicit gender-neutral instructions, courts often presume that children are better raised by their mothers and better financially supported through their fathers (mothers automatically financially support their children while raising them). Good legal representation can level the playing field somewhat, but the scales are tilted in favor of the mother raising and the father paying. I know of mothers and fathers who are satisfied with this arrangement, so I don’t wish to portray it as distasteful for everyone.

Advantageous or not, the combination of these two forces (no-fault divorce and post-divorce duties for mothers and fathers) creates a new kind of marriage ecosystem. The legal model for raising children is no longer based on a family, but on the concept of child support. The role of father in the home is marginalized by a legal environment where the mother can on a whim become a single parent with a stipend from the former husband. Once the father ceases to satisfy as a companion or lover, he can be discarded. His role as a provider always continues until the children are 18. Because of this legal environment, the man who divorces his wife is increasingly rare. Generally their children are grown or nearly so since by divorcing the mother, the father is effectively removing himself from his children’s day-to-day life. On the other side, women receive subtle encouragement to divorce, seeing it as empowering. They “outgrow” their spouses. They need excitement. Even movies like “Fireproof” feed the fantasy that being divorced (or on the way to divorce) re-introduces a woman to the excitement of courtship. She now gets to field offers from other interested men. It is only through heroic effort that the protagonist of “Fireproof” had the best offer. Women now openly talk about “divorcing well” and gently recall the financially responsible yet boring “starter husband” that was part of an earlier phase in their life and who is now helping to finance the current phase.

More and more men are finding themselves banished from their homes. Suddenly their children are only guests in their apartments twice a month. Their family is gone, but their financial obligations continue. Often they will gravitate toward single mothers (why they do so is its own debate) and many begin blended families. New questions arise – if the children of the new union call the father’s new wife/girlfriend “mommy,” can the children of the previous marriage do so when they visit for their twice-monthly sleepovers? Or are they not allowed? Many young adults fondly recall a step-parent that they knew for only a few years before that person moved out. Do those relationships continue? It has become the norm for mothers to look for good father figures at church or among other single friends to compensate for the rejected father. Social groups, even at churches, gladly do what they can to supply new positive male role models and mentors.

The current family court situation is so far removed from the ideals of argument 2 that seeking to protect the ideal of a biologically intact family as something dictated by the natural law is quaint and old-fashioned. After all, regardless of whether a person believes in the natural law or not, the moment a marriage ends in a no-fault divorce, the fate of the children – both where they live and who pays for it – becomes an issue for the courts to decide. Some of these decisions can be quite capricious. But it’s already a matter for family court, not biology and nature.

So, take another look at 2 – “Biologically intact families (Father, Mother, and their offspring) are the natural foundation for society. Any attempt to replace the biological reality with a merely legal reality will, in the end, destroy marriage.” I believe the proponents of traditional marriage are correct when they argue for 2. However, they have misunderstood where 2 is fought. The battle is not in SSM, but in no-fault divorce and the child-support model. This battle was lost some time ago. Hence, the destruction of the societal institution of marriage has already taken place. Taking the conservative point of view here, SSM is not the cause of the destruction of marriage, but its effect. Marriage is already a mere legal reality, as anyone who has argued in family court will affirm. SSM does not turn it into a mere legal reality, rather SSM is what occurs once the mere legal reality has fully replaced the biological reality.

Consider: the “younger generation” has no memory of the biological reality being primary. They remember the visitation and support arrangements and the step-parents/girlfriends/boyfriends that came in and out of their life. They remember being put on a plane to go visit the other parent for the summer. They remember telling the judge that they would rather spend most of their time with mommy or daddy and have their opinion taken seriously. They remember disliking their half-brother because he was the only child in common between their father and step-mother. They experienced it, or had friends that did – and there was no stigma, no societal reproach. It is not surprising that they care little for arguments based on natural law. So what if Aquinas argues for the permanence of procreative marriage on the basis of natural law? Today, the issues concerning where the children live, who takes care of them, and who pays for it are decided by the courts. For those in biologically intact families, their situation is no different. The court will intervene if either parent walks away from the marriage. And they will intervene based on what the judge considers to be the best interests of the children, not natural law. It is the legal reality that we all share.

What of 1 and 3 then? Argument 3, that we don’t know to what extent children will be harmed by being raised in SSM homes, will not stop SSM since it didn’t stop no-fault divorce and the child-support model. There is a mountain of evidence showing that children are worse off in single-parent homes than in biologically intact families. Yet parents routinely sacrifice their children’s well-being on the altar of their own happiness when they initiate no-fault divorce. Argument 3 will not deter SSM since SSM is likely less harmful and more stable than single-parent situations. Once marriage is purely a legal entity there is no court-room reason to restrict it to heterosexual couples. It no longer has a biological basis to defend. And if it’s less harmful than elective single-parenthood, which we as a society already accept and support, then Argument 3 will not prevent SSM from becoming legal.

As for argument 1, we have, as a culture, already given up on the idea of lifelong unions. Marriage vows still pay homage to the ideal, but given the high divorce rate, those vows are often theater more than real life. Traditional marriage is about procreation and permanence, and as a society we have abandoned permanence. The level of novelty IS too dangerous. But it has already happened. The only thing left to remove is the tight association of marriage and procreation. But that association is generally sneered at as a relic of a patriarchal age.

The only standard paradigm argument left is argument 4, and it cannot be used as a legal justification. Thus, I have argued that SSM is inevitable, but only because the proponents of traditional marriage are right, not because they are wrong. Because the traditional marriage proponents are right, only widespread cultural change large enough to re-imagine divorce will prevent the legality of SSM. Yet society seems willing to continue down the path begun by the current divorce culture rather than consider it a disaster.

18 responses

  1. you spoke many words of wisdom and then you said this “SSM is likely less harmful and more stable than single-parent situations.” please be clear on your possition on SSM other than arguing on “if it is inevitable” or not

  2. “SSM is likely less harmful and more stable than single-parent situations.” does this secretly mean you support Same Sex “Marriage”

    • Hi, Miguel.

      I think my position is clear based on my evaluation of reason 4. It supersedes all other considerations for me, and would settle the issue even if social scientists on both sides of the debate found no statistically significant harm for the children.

      If I can clarify my position on child harm – from what I can gather ALL the studies show significant problems for children of single-parent households, ranging from increased poverty and neglect to increased behavioral problems and delayed psychological maturation. I am not aware of serious disagreement. For children raised by same-sex couples there is, as of yet, no consensus. Does that help?

      • But if there is no consensus, then how can your determine “more” or “less” harm? You make some compelling points, but there are so many sweeping generalizations about generational experience that one cannot help but think of exceptions to the scenarios you describe. And although there is a troubling high divorce rate, what is your alternative to the courts deciding some of these issues? Without the courts, many parents, both male and female, would be deprived of important things such as visitation rights and child support, the absence of which always potentially harms children more than either adult. I am not saying the courts are perfect, but who else will consider the rights of children in a divorce scenario? Without the courts, the most financially powerful parent, regardless of gender, will always be primarily in control, and then it is uncertain if moral correctness will align itself with the most economically powerful parent. I am not convinced that SSM is inevitable. It may be the case that it is spotlighted right now due to the current political environment, but those environments change and so I think the future is more uncertain. Even if it becomes legal throughout the nation, statistically a small percentage of the population will engage in this, even if it receives more press. I think the larger issue is to deal with divorce, and how to minimize the damage done to children.

        I think the representation of women discarding “boring” financially stable “starter” spouses is really oversimplifying things and really minimizes the seriousness with which many people treat divorce. And have you heard about men who might have possibly discarded a “boring” middle-aged female “starter” spouse for a younger, newer female spouse? I am pretty sure that is a more familiar cultural narrative.

        Thanks for bringing up such interesting points for us to consider.

      • Hi, Doni!

        I thought this point wouldn’t be controversial, primarily because social scientists have studied children raised by single parents for quite some time now and know what to look for. If there is a similar effect for children raised by same-sex couples it is not _as_ obvious, though there may be some detrimental effects not yet quantified. This is emerging research, naturally, and some of it is still anecdotal. But if the effect was as great, barring a research conspiracy, the consensus would have already occurred.

        Let me put aside your question of alternatives to the courtroom for the moment, since I’m about to step into class. But let me assure you that men rarely discard their wives for a newer model, so to speak. That is an outdated cultural stereotype. There are many statistics about this, but the research I’ve seen indicates that 80% of divorces are initiated by women. If a man is of low enough moral character that he plans to discard his wife he will find that there is overwhelming financial disincentive to do so. In addition, adultery is no longer a crime. If a man’s lawyer or accountant doesn’t try to talk him out of getting a divorce, they should be fired.

        It’s serious because a great deal of money is involved, as well as access to the children. Often, one is exchanged for the other. It is quite a messy business, but has sadly become unexceptional.

  3. Thanks Russell, I will have to think about these things…but I will say this: no divorce lawyer will ever try to discourage either party from not getting a divorce as there is no incentive whatsoever for family lawyers to see the divorce rate drop. Sad but true. Thanks for responding.

  4. Hey Russ. You say, “The only thing left to remove is the tight association of marriage and procreation. But that association is generally sneered at as a relic of a patriarchal age.”

    Two things on this:

    1. I do believe that in many cases, Christians who advocate SSM (like myself) tend to promote it in terms of a family, as in an essential unit of society, rather than merely an individualistic expression of romantic love. I believe the societal focus adds an element which is almost, but not entirely, lost in the secular part of the debate.

    2. Misuse of contraception has likely already distorted the view of sex among heterosexuals. I am not an adherent of Theology of the Body, obviously, but that is not to say there is absolutely no merit to the Roman Catholic view on contraception. The family should always bear in mind its responsibility to society (like in point 1), not just to itself.

    • It is late and I don’t seem to make much sense. What I mean to say here is that while SSM may not be explicitly have procreation as an end, if it avoids individualism and plays some part in society as a whole, then I believe this may in many ways be an adequate replacement for procreation.

      But of course, procreation and contribution to society is lost to individualism, assisted in part by a poor outlook on contraception.

  5. May I offer another point to consider; are “court-house steps” marriages in the eyes of the Lord. My thinking is God demands covenant unions with Him as head over all. I suspect the ekklesia lost this issue when a piece of paper gained equality with covenant unions.

  6. Russell, in your clarification as to your position, i.e., reason 4 trumps everything, I see where you hold to a creational ordinance/natural law kind of position. That being the case, do I read you wrong that it is a lost battle? What I think I hear from you is, “Unless we can change the divorce ethic we’re doomed,” but it seems that if the Reformers were even partially correct in stating that the moral law is written on the hearts of all (perhaps the 10 commandments, but maybe others as well), then why do you say everyone is simply involved in a shouting match, unless they recognize the no-fault divorce as the decisive issue? Wouldn’t it be possible that the ‘unnaturalness’ of SSM finally pricks the conscience and the populace rejects SSM? I guess what I’m saying is that while I probably share the predictions, we must not throw in the towel.

    Second, you seem to be level headed in terms of social research, so the data behind no-fault divorce seems to not be the evil some make it out to be, no? Where is the data that supports no fault divorce has deomonstrably ruined or destabalized the institution of marriage? http://www.nytimes.com/2010/06/17/opinion/17coontz.html?pagewanted=all&_r=1&

    • Hi, Nate!

      I’m going to do a followup to this blog entry since I’ve gotten lots of questions on it, and I’d like to go into some further justification for some of the points I make as asides. I’m going to wait on the “pricked conscience” question for then.

      However, the data on no-fault isn’t about the laws. You’re absolutely correct that the divorce rate hasn’t ballooned post- no-fault laws – and thanks for posting that article, which corroborates a lot of what I’ve been reading. The problem is, the no-fault laws are only catching up to a no-fault culture that already existed by the time the laws were enacted. People were already collaborating no-fault divorces by collusion since there was no legal avenue for them to come out in the open and say that they were divorcing for incompatibility/insupportability. Now they have that option so the process is more honest. And that’s not a bad thing. The problem is that there was a need for the new laws in the first place, that as a culture we accepted divorces based on unhappiness rather than moral cause.

      Also, and my article goes into this somewhat – a couple colluding with each other in order to secure a no-fault divorce without the benefit of no-fault divorce laws is one thing. A unilateral no-fault divorce (again, usually the father/husband being exiled from his children) is quite another.

      Either way, the culture accepted the no-fault _idea_ first. Then the laws caught up to actual practice. For this reason I don’t expect to see a jump in the divorce rate from no-fault laws being passed. My problem is with the no-fault idea and the culture that accepts it.

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  8. Dr. H. You know an old lady has to put her “two cents” in. I make light as to what is a traditional a marriage. I doubt seriously in the 1579 BC, blissful couple walked down the isle and I now pronounce you husband and wife. I believe I counted 9 types of male/female relationships in the Bible. This is where you take a tent and some goats and get a female to procreate with in a relationship. In some cases more than one female or one male. In history I have discovered in several instances that men and women do take up with each other and call themselves husband and wife–common law. Sometimes there were married to someone else and never divorced. I do question the term “traditional.” I feel the roles in society have become a bit confused over time. I felt there was a difference between what is a sin and what is an abomination; there is of course a difference. I feel that for procreation in the traditional relationships of people is between a man and a woman. However we cannot view homosexuality as a sin because of the terminology used in the Bible. It is inevitable and it will happen and you are correct in making that assumption. As a Christian sometimes I find that we hurt a position of morality more so than any other group when dealing with subjects like SSM or even abortion. I feel that tolerance through education would possibly solve these issue quicker than the Supreme Court. After watching many of the professors in the university I attend, it is refreshing to see they lead by example and tolerance and they encourage those find the correct solution in their lives. As another professor commented on the other day, it may be better to separate the institution of marriage in the Christian sense totally from the civil legalities. Other countries do successfully.

  9. Good article, even if the ending is sad. Although I agree with not claiming it is “better” with the SSM crowd. Plus, keep in mind that often the “study” that comes out saying it is good, usually determines it by who felt “happy” and the level of this.

    in other words, the study itself is biased and forms no conclusive results. Although, off-hand, I can tell you that society will fall the way of France in ever-dwindling numbers because having sex ends up being way more enjoyable than those burdensome kids. I wish this latter statement was not true, but as Rosie O’Donnell once told her kid who questioned why he was being denied a father, “I’m the kind of mommy who wants another mommy.”

    Yep, a Me-Me Culture has been raised since the beginning of the 20th Century.

  10. Although I think your arguments are superb, I don’t agree that SSM is inevitable. I want it to be, but I’m not willing to draw that conclusion before the ideal becomes a reality.

    To this end I argue against your conclusion that traditional proponents of marriage are right (http://margueritequantaine.wordpress.com/2013/05/24/the-telltale-heart/) tap suggesting emotional intelligence in deciding this issue warrants equal merit, using history as the gauntlet thrown down. It’s a much more simplified route I’ve chosen to effect the result you’re certain of, yes. But I believe, at this stage of the game we must abandon trying to change minds and focus on changing hearts.

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