Three 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:
- 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.
- 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)
- 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.