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Until the early 1990s the
“same-sex marriage” question was not a significant issue for public debate even
within gay and lesbian circles. During
the 1970/80s gay and lesbian theorists widely rejected marriage as an inherently
heterosexual institution irrelevant to their concerns. Marriage sparked little interest for a
movement celebrating a distinctive sexual lifestyle that broke with the
constraints of heterosexual conjugality.
However, since the mid-1990s there has been growing pressure for a
same-sex redefinition of marriage. In
these last few years the same-sex marriage movement has fuelled a sizeable body
of advocacy scholarship.
David Chambers, University of
Michigan Law Professor, points out that in the
However, on the Canadian side of the border there is now a
full-court press for same-sex marriage.
Over the past few years much of the legal ammunition
engineered in the
The legal arguments served up in recent provincial court
decisions for same-sex marriage offer good paraphrases of positions developed by “gaylaw”
theorists. It seems odd for jurists to
be forging ahead with legal reconfigurations of marriage at such an early stage
of debate. In the academy there has been
little in the way of substantive response to this new body of argumentation and
advocacy. Critical evaluation will
eventually come, but perhaps too late as courts and legislatures are pushed to
move. The following discussion traces a
number of concerns that still remain in the shadows of our public and academic
debates.
1. The Equivalence of Same-Sex
and Opposite-Sex Bonding?
A key argument for same-sex marriage advocacy
stresses the “unitive” over the “procreative dimension” of marriage.
This argument reduces the discussion of the “unitive” dimension to
diffuse notions of loving affection and intimacy between two persons. However, it fails to mention that the “unitive”
dimension of marriage refers to the joining of sexual difference, rather than
combining sexual sameness.
Sex-difference and opposite-sex attraction and bonding are fundamental
features of human existence. Marriage is
an institution that attempts to work with this vast and complex domain of
social life. It provides a crucial
bridge of social-sexual intimacy for male-female bonding. This unique and ever-evolving institution
constantly struggles adapt to changing social and cultural contexts in order to
nurture stable conjugal unions that span the sexual divide between men and
women.
The significance of this central task of marriage is pushed
off the table in contemporary debates.
Advocates of same-sex marriage make much of the fact that “researchers”
discover “no difference” between homosexual and heterosexual relationships when
it comes to the basic dynamics of love, compatibility and intimacy. This argument for the similarity of all
committed sexually-bonded relationships grounds recent court judgments. In the Ontario Superior Court decision
supporting same-sex marriage, Justice Robert Blair echoed this view stating
that “marriage must be open to same-sex couples who live in long-term,
committed, relationships — marriage-like in everything but name — just as it is
to heterosexual couples.”[3]
The scholarly authorities cited to support this thesis are
typically proponents of “close relationship theory,” a relatively new model of
relationships that explicitly focuses on the “common” dynamics in all close
sexually bonded relationships.[4] The underlying principle of close
relationship theory is that all close dyadic relationships operate according to
the same dynamics and values. Close
relationship theory bleaches out the significance of embodied sexual difference
and argues that all committed sexual bonds should be “subsumed under the
broader construct of close or primary relationships.” [5]
This slanted academic approach reflects broader cultural
trends. According to Anthony Giddens,
Not surprisingly this model is fine-tuned to discover
exactly what it predicts, namely that same-sex couples reveal the same patterns
of interpersonal intimacy evident in opposite-sex couples. But these core values out to be true for all
relationships: sibling relationships, friendships, opposite-sex unions,
parent-child attachments, same-sex unions, and so on. By inflating the notion of the “unitive” to
this generic interpersonal intimacy we bracket out the specificity of marriage
as a form of life struggling with the unique challenges of bonding sexual
difference. Close relationship theory
is not designed to generate conceptual insight into fundamental facets of human
life: the fact of sexual difference; the significance of sexual
complementarity; the important place of male/female bonding in human life; the
procreativity of heterosexual bonding;
the unique social ecology of heterosexual parenting which bonds children
to their biological parents; and the rich genealogical nature of heterosexual
family ties.
A public discourse that screens out any meaningful
recognition of the remarkable significance of human sexual dimorphism
(male/female) and reproduction in human life must entail a fundamental change
in the way marriage is viewed. The
“close relationship” paradigm is relatively new, barely a generation old. To date it has not been subject to any
sustained or critical evaluation within the academy. Critical review will come since the
limitations of this approach are glaring.
However, in the meantime close relationship theory already is beginning
to seriously shape legal thinking about marriage and family law. The pervasive influence of this approach can
be seen in recent recommendations and reports by the Law Commission of Canada, Beyond
Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001)
and the American Law Institute, Principles of the Law of Family Dissolution (2002).
The inability of current academic theories to recognize
significant differences between forms of homosexual and heterosexual bonding,
differences that generate very disparate social ecologies, should raise serious
questions about the conceptual blinders of these theories.[7] Our courts and legislatures should resist
pressure to build law on views and theories that may be new and fashionable,
but still awaiting the tests of time and rigorous academic debate. This is particularly so when these new
theories and perspectives seem so oddly out of step with core features of
marriage pervasive throughout history and across cultures.
2.
History of Same-Sex Marriage?
A second key
talking point for same-sex marriage advocacy attacks the universality of the
opposite-sex definition of marriage by pointing to some historical examples of
same-sex marriages. This
contribution rarely alerts the reader as to the rarity of these exceptions, nor
the significant scholarly debates over their meaning. Also, it fails to mention that the few
scholars who have delved into this area such as John Boswell and E.J. Graf are
gay and lesbian scholars whose interpretations of the historical evidence are,
at best, problematic and laden with advocacy.
In two major studies Boswell advanced a number of claims
that are regularly trotted out as accepted academic wisdom.[8] For example, Boswell challenges the notion
that the Bible prohibits “homosexual conduct.”
He argues that scriptures do not have a concept of individuals with a
homosexual nature or orientation.
Therefore, the bible cannot be prohibiting “homosexuals” from engaging
in homosexual conduct since the modern concept of homosexual was
non-existent. This curious piece of
exegesis leads to the conclusion that the Bible is, in effect, only prohibiting
homosexual acts by heterosexuals.
Boswell also tries to get some mileage out of the rich
discourse on “friendship” in the Christian tradition. His analysis of friendship covenants (adelphopoiia
– “making into a brother”) in Eastern Christianity suggests that they were
used as a vehicle for ritually blessing gay marriages.
Boswell’s arguments have been subject to critique by both
biblical exegetes and medieval historians.
While these kinds of historical constructs remain, at best, of dubious
value, nevertheless have been rapidly crystallized into a neat body of advocacy
historiography that get trotted out in legal and public forums as arguments for
“precedent.” We now talk glibly about
“the history of same-sex marriage.”[9] Yet does such a “history” exist? And how do we weigh it against the
universality and pervasiveness of “heterosexual” marriage across human history
and cultures?
3. Dismissing Heterosexual Procreativity?
A third key argument dismisses attempts to affirm the
procreative nature of marriage. The recent federal brief by the Canadian government
appealing the
According to this line of argument, the existence of
infertile married heterosexuals means a slam-dunk for legitimizing ‘homosexual
marriage.’ The logic runs as follows: if
infertile heterosexuals are in, then procreation is out; if procreation is out, then same-sexers are
in. Human cultures and religions have
always consistently vigorously affirmed the intrinsic procreative nature of
marriage, while, at the same time, extending the marriage to infertile and
post-fertile heterosexuals. Same-sex
advocates refuse to enquire why this is so; they simply leap to the conclusion
that there is mere silly contradiction here.
Could there be good reasons for this extension? First, there is a fundamental difference
between the ‘infertility’ of some heterosexual couples and the
‘impossibility’ of all same-sex couples to procreate through
same-sex bonding. Male/female
pair-bonding is the procreative mainframe for human life (6 billion people on
the planet are a product of this heterosexual bonding). Even gay theorists such as Richard Mohr do
offer a condescending nod to
“different-sexers” as the “breeders” of the species.
Same-sex advocacy seems to suggest that various forms of
sexual bonding are neutral and fairly irrelevant in regards to
procreation--mere matters of choice. But
is this true? Are heterosexual and
same-sex bonding equivalent in relationship to the question of
procreation? Heterosexual bonding
typically demands the deployment of a significant battery of technological
instruments and societal policies (contraception, abortion, education against
teen pregnancy) to contain and constrain the profoundly procreative nature of
opposite-sex bonding. On the other hand,
for same-sexers the dilemma revolves around the essentially non-procreative
nature of their sexual acts. One must
deploy far more complex array of technological and social interventions
(surrogacy, sperm donors, assisted reproduction) to work around the
non-procreativity of same-sex bonding.
Same-sex bonding must, of necessity, employ a third party in order to
meet the opposite-sex requirements for human procreation.
Furthermore, to depict the linkages between marriage,
opposite-sex bonding, and procreation in the rigid literal way that same-sex
advocates suggest would force us to conclude that heterosexual couples are only
truly ‘married’ during the three or four “fertile” days in woman’s cycle. There is also an age disparity in male and
female fertility. Marriage must be
malleable enough to capture the procreative variables in human heterosexual
bonding. Accordingly, all human
societies have affirmed the basic procreativity of heterosexual pair-bonding
and have extended marriage to long-term opposite-sex bonds without attempting
to work through specific cases. Consider
the incredible morass involved in attempting to sort out heterosexuals
according to various levels of fertility and infertility (it’s rarely simply
either/or). In short, to contend that
this extension of marriage to all heterosexuals is a negation of the significance
of heterosexual procreativity is both inaccurate and misleading. It is a classic example of not seeing the
forest for the trees. The public
affirmation of the procreative nature of marriage endorses the procreativity of
heterosexual marriage as an institution, not specific incidents.
Finally, marginalizing procreation as a defining feature of
marriage is an example of the imposition of model of marriage that is fully consistent
with same-sex experience but inconsistent with heterosexual
experience. Procreativity is an
inherent, though variable, feature of the heterosexual conjugal
experience; non-procreativity is an
inherent non-variable feature of same-sex experience. William Eskridge concedes this point when he
argues that,
The gay experience has been systematically different from
the straight experience. Because
same-sex intimacy is disconnected from procreation, it is more purely connected
to other values, such as self-expression, bonding with another person, and
pleasure. Without an anchor in
procreation, same-sex intimacy is more openly committed to sexual diversity
than different-sex intimacy is. …[10]
The same-sex marriage project imposes a definition of
marriage that conforms law and public policy to same-sex experience.
A fourth line of argument insists that gay marriage
is “for the sake of the children.” Gay couples do have children either
through previous heterosexual relationships, adoption, surrogacy, or
reproductive technologies. Same-sex
advocates maintain that the recognition of same-sex marriage helps to stabilize
and affirm the relationship of the children to their same-sex “parents.” Gay marriage is good for the kids of same-sex
unions. (Census data does indicate that
the number of children in this category is minimal.)[11]
However, there are some striking differences between the
nature of the parent-child connection in same-sex unions and in opposite-sex
unions. The gay marriage project must,
of necessity, begin to sideline ties between biological parents and
children. The gay marriage project must
also press for full access to new assisted reproductive technologies in order
to technologically facilitate lesbian reproduction or surrogate parenting
procedures for gays.
Candid same-sex advocates recognize that the gay marriage
project entails fundamental shifts for children. William Eskridge concedes (celebrates) the
fact that building law upon gay experience,
…involves the reconfiguration of family—de-emphasizing
blood, gender, and kinship ties and emphasizing the value of interpersonal
commitment. In our legal culture the
linchpin of family law has been the marriage between a man and a woman who have
children through procreative sex. Gay
experience with “families we choose” delinks family from gender, blood, and
kinship. Gay families of choice are
relatively ungendered, raise children that are biologically unrelated to one or
both parents, and often form no more than a shadowy connection between the
larger kinship groups.[12]
This disconnect between progeny and natural parents is the
new legal vision of marriage that has emerged out of the
Across all cultures the institution of marriage works to support the
ties of natural parents to their progeny.
It provides broad public affirmation and support for this type of parental
ecology. In doing so it also enshrines
a basic birth-right of children to know, to be connected to, and to be raised
by their natural parents. It enshrines
this right in a robust but malleable way (with the possibility of adoption for
exceptions to the rule).[14] The United Nations Convention on the
Rights of the Child states that, “the child shall …have the right from
birth to a name, the right to acquire a nationality and. as far as possible,
the right to know and be cared for by his or her parents.” (Art. 7) This right also implies that children should
not to be the subjects or products of experimental reproductive technologies
that may have long-term effects on life, health and identity that remain as yet
unknown.
Children have a birth-right to be connected to their natural
parents, to be connected to their biological mothers and fathers. This is a
right for all children, for gay children and for straight children. The movement for extending marriage to
same-sex couples signals a society now uncertain or unwilling to publicly
affirm or support this fundamental familial dimension of our social
ecology.
5. The Value
of Change – Marriage Expansion?
Another line of argument stresses the fact that
marriage has changed over history, constantly expanding to provide more
universal access. The Law Commission of Canada’s report Beyond
Conjugality, quotes lesbian journalist E.J. Graff (Brandeis University) on the endless
variability and malleability of marriage throughout history. If marriage has changed before, why not
change again? Furthermore, gay marriage
advocates argue that the underlying principle of this ongoing change seems to
be one of constant expansion of the personal right and freedom to marry: to marry in or outside of one’s clan, to
marry in or outside of one’s race, to marriage in or outside of one’s religion,
and finally, to marry in our outside of one’s sex.
The argument is pre-programmed to point to the Loving vs.
Virginia decision repealing certain U.S. state laws prohibiting interracial
marriages. Just as marriage was extended
to include interracial unions, now it should be extended to same-sex
unions. In Eskridge’s words: “People revolted by different-race marriage
were wrong. Likewise, people revolted by
same-sex marriage are wrong.”[15]
This celebration of change fails to distinguish between
changes that contribute to the development and viability of an institution and
changes that destabilize and erode the integrity of an institution.[16] The Loving vs. Virginia decision is a
good example of “development.” State
laws enacted to prohibit interracial marriage were legal “changes” clearly
inconsistent with the fundamental purposes of marriage. Such laws hitched marriage to inappropriate
and immoral purposes: e.g. "to
preserve the racial integrity of its citizens," and to prevent "the
corruption of blood," "a mongrel breed of citizens." (Loving
v. Virginia). Attempting to
redefine marriage so as to impose upon the institution the task of racial
segregation actually restricts the capacity of opposite-sex partners to marry
and clearly distorts the basic purpose of marriage.
The repeal of the anti-miscegenation laws led to more
clarity since it re-focused marriage on its task of supporting long-term
opposite-sex bonding. Loving v.
Virginia clearly underscored the principle that one of the fundamental
tasks of marriage is procreative (“an institution fundamental to our very
existence and survival.” Loving v. Virginia). In short, this decision reinforces the core
elements of marriage (opposite-sex bonding and procreativity). Same-sex marriage, on the other hand,
requires us to deflate the category of marriage to a form of long-term
sexual-bonding that deletes the centrality of opposite-sex bonding and
procreativity from its defining characteristics.
Furthermore, good changes have not always meant
expansion. The development of marriage
has, at times, meant restrictions rather than expansions of institution. These restrictions target categories that
fail to meet a basic purpose of marriage.
For example, the fairly widespread practice of polygamy was prohibited
as cultures came to stress the monogamous nature of heterosexual
pair-bonding. The restriction of
marriage to pair-bonding makes sense in the light of the dyadic nature of
heterosexual reproduction.[17] The recent report of the Law Commission of
Canada, Beyond Conjugality, is
already hinting that their new legal category of ‘close personal relationship’
should not be “limited to two people.” The
report insists that flexibility on this question is necessary because “the
values and principles of autonomy and state neutrality require that people be
free to choose the form and nature of their close personal adult
relationships.”[18]
In the modern period legal reforms have placed age
restrictions placed on the capacity of adolescents to marry. Child marriages and incestuous unions were
consistently excluded from the marriage category since these categories undermine
the maturity and the familial distance required for responsible consent and
procreation. Same-sex unions were
excluded since they lacked the sex-difference essential to the unique nature of
marriage as a conjugal union geared to long-term heterosexual bonding and
procreativity.
Finally, changes may work to erode rather than develop the
integrity of institutions. In recent
decades legal and political interventions into marriage may have contributed to
a destabilization of the institution.
The disconnect between procreation and marriage has been driven home so
hard that demographers now worry about the social and economic implications of
the steep declines in birth-rates.
Marital permanence is central feature of the conjugal
bond. The steep declines in conjugal
permanence over recent decades have seriously altered marriage and family
culture. Judith Wallerstein’s acclaimed study of the effects of divorce on
children points to the complete absence of serious research into the possible
impact on children in the construction of no-fault divorce legislation during
the late sixties. During this period
experts assured us that divorce reform would not adversely affect divorce
rates, it would only make it easier for hard-pressed divorcing couples to exit
from unworkable relationships. However, divorce rates did spike upwards far
beyond any predictions.[19] Social science research indicates high
divorce rates entail large private and public costs. Sober assessments of the impact of
divorce on children and spouses are just beginning to emerge. This research may point in new directions
for law and public policy.[20]
Marriage has changed, but its core features have remained
recognizable across cultures, religions, and history. Across all cultures marriage has been a
unique and evolving form of life that struggles to negotiate the challenges of
long-term opposite-sex bonding. It
bridges the sexual divide within the human species. It is a procreative bond that generates human
life through the biological fusion of sex difference. It promotes a social ecology that supports
the rights of children to know, to be connected to, and to be in a stable
relationship with their natural parents. It is a genealogical bond that reaches
back into time through its ancestors and forward to the future through its
descendants. It fosters rich and complex
lines of kinship that weave through human community. This complex social institution does need
ongoing change and development to uphold these characteristics of marriage, not
to dismantle them. The social ecology of
conjugality can only be shaken and destabilized, not developed, in the push for
a “one-shoe-fits-all-sizes” reconfiguration of marriage that deletes
heterosexuality from its core definition.
6. The Depth
and Breadth of the “Same-Sex” Marriage Demand?
Same-sex marriage advocacy emphasizes a sense of
urgency for change; it draws attention
to the yearnings of a very significant
community of gay and lesbian couples for
inclusion. The Beyond Conjugality report by the
Law Commission of Canada celebrated the growing diversity of conjugal
relationships in Canada. In particular
it pointed out that “available data” indicates that “a significant minority of
Canadian households consist of same-sex couples.” It cites one federal study that “estimated”
that approximately 270,000 persons were living in same-sex relationships in
1994.[21]
First, the historical depth of this desire for same-sex
marriage is open to debate. This demand
was not on the agenda of gay and lesbian activists during the 1970s and
80s. Even today there is division in
gay and lesbian communities about the push for marriage. Some express strong reservations about
efforts to corral gay and lesbian life-styles into the constraints and
respectability of marriage. The increasing
demand for gay marriage is, to some extent, the product of recent
advocacy. The inclusion of this issue
into gay politics has contributed to a political construction of heightened
expectation and desire.
Second, the perception of a fairly “significant minority”
needing inclusion is simply not born out by the data. After assuring us that there was a large
community of same-sex couples to attend to, the Beyond Conjugality report
noted that the 2001 Canadian census would finally offer us reliable data. However, the comprehensive census data
seriously challenges any claims to the existence of any “significant minority”
of gay and lesbian couples. These
inflated estimates seem to reflect the popular urban myth set in motion by
Alfred Kinsey that 10% of human beings are same-sex orientated.[22] Census data indicates that same-sex couples
represent less than one percent (.05) of all couples in Canada (married and
cohabiting). Same-sex couples constitute
a minute fraction of Canadian couples.
These numbers are consistent with recent census data from other Western
countries.[23]
This data should raise some questions. How deep and longstanding is the desire for
marriage among gay and lesbian couples?
How demographically significant is this sector of the community? Will redefinition of the institution of
marriage really contribute much to gay and lesbian life?
On the other hand, we do know that opposite-sex yearning for
marriage is exceedingly deep and broad.
Despite the destabilization of this institution in recent generations,
marriage remains pivotal to the aspirations of a vast majority of young men and
women.[24] Are law and public policy seriously
attending to the significance and place of marriage in the lives of this
crucial segment of the public? Will
this redefinition risk further destabilization of an institution vital to
heterosexual identity and life (the 99.5% of couples)?
This argument characterizes monogamous heterosexual
marriage as an ideological concept of marriage rooted in religious
doctrines. By receiving the stamp of
law the state establishes a confessional view of marriage upon society. Nancy Cott makes this argument in her historical analysis of
the imposition of a Christian model of conjugal monogamy on the American
polity.[25] In her view, the separation of church and
state should entail cleansing law of any theological vision of marriage. In Beyond Conjugality the Law
Commission of Canada builds on Nancy Cott’s argument for disestablishment:
Borrowing the term from the history of church and state,
Nancy Cott has described the transformation in the relationship between
marriage and the state in the United States as "disestablishment".
Just as the state does not recognize a single, officially established church,
no longer is any single, official model of adult intimate relationship
supported and enforced by the state.[26]
In his recent overview of developments in Canadian family law, Nicholas
Bala characterizes the “permanent, monogamous, marriage, nuclear, heterosexual”
definition of marriage as “an explicitly Christian concept of marriage.”[27] In this view, the current heterosexual
definition of marriage legally imposes a particular theological or religious
vision of marriage on society that violates the convictions of sexual
dissenters and nonconformists.[28] There are visions of conjugality. The vision of marriage as a “union of two
persons” rather than a sex-bridging union is a view propounded by a small
sector of religious communities such as the Unitarians, the gay and lesbian
Metropolitan Community Churches, and, most recently, the United Church of
Canada.
But then, how would a redefinition of marriage consistent with the sexual
philosophies of these dissenting traditions, that is, marriage as “a union of
two persons,” offer any escape from the dilemma of publicly mandating a
particular vision of marriage? To
redefine marriage as a “union of persons” rather than the sex-bridging union
held by most faith traditions would legally impose one sectarian vision of
marriage as the new public theology for society as a whole. This publicly mandated vision of marriage
would now favour a nonconformist vision of marriage supported by some
denominations but violate the convictions of many other significant
traditions. The imposition of this
‘union of two persons’ vision does not disestablish marriage but merely creates
a new established ‘doctrine’. If this is
the case, then the marriage debate must end in stale-mate.
Conflating religion and marriage
ineluctably leads to the conclusion that marriage should be separated from the
state. The removal of marriage as a
legal category is one of the options now being considered by the Canada’s
Standing Committee on Justice in its hearings on the question of same-sex
marriage. Many religious constituencies
are now seriously questioning whether this option might be preferable to a
full-fledged legal re-definition of marriage.
The political regulation of marriage was a relatively late development
in the history of Western law; perhaps
it’s time for the state to get out of the marriage business.
Perhaps. On the other hand, the problem with this
whole discussion may lie in a conceptual confusion that meshes religion and
conjugality, a conflation that deflects the debate in the wrong direction. Sexuality and religion are distinct domains
of human life. The huge and complex
slice of human experience constituted by heterosexual bonding, procreativity
and natural parent-child connectedness cuts right across all religions as well
as non-religious traditions and cultures.
In a real sense, marriage is bigger, prior and more elemental to human
life, than religion.
Marriage has been a public cultural frame for grappling with
this massive human reality. And
religious traditions have been major cultural players struggling with
marriage. They tussle over its
significance and offer very different theological grammars to explore its
meaning. Marriage may be deeply coloured
by religion, however, it is not the creation of religions. Marriage is rooted in a procreative
social-sexual ecology of heterosexual bonding.
Human conjugal life is more than some form of sexual “soul-mating”
theology conjured up by particular religions.
8. Does Exclusion from Marriage Denigrate Same-Sex
Unions?
Same-sex marriage advocacy condemns the failure to
extend marriage to same-sex unions as exclusionary and denigrating--
constituting, in effect, a public
declaration that gay relationships are “unworthy”.
Eskridge makes much of the “exclusionary” argument. He argues that the refusal of gay marriage
creates a form of apartheid that denies public recognition to the relationships
of a whole class of persons. Exclusion
based on race would be racism; exclusion
based on sexual orientation is “heterosexism” or “compulsory heterosexuality”.[29] The Beyond Conjugality report notes
that for same-sex couples this exclusion “represents a rejection of their
personal aspirations and the non-recognition of their personhood.”[30]
This line of argument was put forward in the Ontario
decision. Justice Harry LaForme
states, “Excluding gays and lesbians
from marriage…declares an entire class of persons unworthy of the recognition
and support of state sanction for their marriage.” To extend benefits to same-sex unions and
deny marriage “really imports nothing more than tolerance – it is not the equal
of full acceptance.”[31] LaForme maintains that marriage extends
society’s highest approval to close relationships; the denial of the right to
marry thereby signals society’s disapproval of those relationships. Judge Lemelin concurs citing the “appalling” separate
but equal doctrine.[32] In the words of an applicant in the Quebec
case, "Marriage is the gold standard in terms of social
respectability."[33]
The notion that marriage is the benchmark of social
recognition for close human relationships seems bizarre. Human relationships are far too diverse and
too complex. They cluster in many
different classes of relationships:
friendships, collegial relationships, professional relationships,
sibling relationships, domestic
partnerships, sexual relationships,
spiritual relationships, same-sex relationships, and more. In many traditions there are forms of human
relationship that are ranked above marriage (e.g. celibate or “consecrated”
life in the Catholic tradition). To
speak of marriage as the “gold standard” for close relationships skews social
reality.
Does opposite-sex marriage create an apartheid like sexual
regime. Even leading gaylaw theorists
such as William Eskridge are beginning to point to the “inaptness” of the
apartheid analogy.[34] Institutions of apartheid and racial
segregation are “separate-but-grossly-unequal” regimes. This is not the situation of homosexuals in
most liberal democratic regimes: homosexual relationships are accepted as
lawful; there is no social segregation
of homosexuals; homosexual relationships are, in large part, equivalent to
non-married heterosexual relationships; increasingly through redefined
cohabitation laws, domestic partnerships, and civil unions, same-sex
relationships share the same benefits as married opposite-sex
relationships. According to Eskridge,
these kinds of emerging arrangements represent a “different but equal” regime
compatible with liberal values.[35]
However, Eskridge’s analysis of “civil unions and the future
of gay rights” also raises a caution. In
his opinion, the incremental movement to practical legal equality between
same-sex unions and marriage is a pragmatic strategy establishes the legal
principles and practice for dissolving the distinction between these
categories. Societies legislating civil
unions are societies are heading down the aisle towards same-sex marriage. If this is true then those arguing for
sustaining opposite-sex marriage must also think more carefully about the
implications of proposing marriage-equivalent civil unions.[36]
The institution of marriage struggles to deal with a
particular class of human relationships marked by needs and challenges for
long-term intimacy and sexual bonding that reach across the sex divide. This “class” of sex-bridging relationships
has unique features, e.g. its natural and powerful capacity for
procreation. Supporting and sustaining
healthy long-term heterosexual bonding is a massive and difficult project in
human society. An institution such as
marriage cannot do all things for all relationships without losing its internal
integrity and direction. To allow marriage
to focus on its defining purposes is not to deny or denigrate other kinds of
relationships.
9. No
Difference? Little Impact?
Finally, same-sex marriage is presented as a
relatively innocent “add on” for the gays and lesbians who want to be
“married”; this “add on” will make
little or no difference to heterosexuals. But can this
be true? In human societies marriage has
been a unique vehicle for culturally affirming or valorizing a special role of
a particular type of heterosexual bonding.
The proposal to delete heterosexuality from the definition of marriage
clearly changes the internal meaning of the institution of marriage and will
inevitably affect the life and identity of those shaped and sustained by this
institution. Thoughtful gay and lesbian theorists admit this. Lesbian theorist Ladell McWhorter puts it
well pointing out that if gay people are
…allowed to participate as gay people in the communities and
institutions they [heterosexuals] claim as theirs, our presence will change
those institutions and practices enough to undermine their preferred version of
heterosexuality and, in turn, they themselves will not be the same. They
[heterosexuals] are right, for example, that if same-sex couples get legally
married, the institution of marriage will change, and since marriage is one of
the institutions that supports heterosexuality and heterosexual identities,
heterosexuality and heterosexuals will change as well.[37]
Anthropology alerts us to the fact that communal
institutions like marriage are not just functional mechanisms to fulfill
individual needs and aspirations. They
are rich and multilayered realities with internal purposes that speak to
complex needs for meaning and identity within human community. Michel Foucault, the brilliant postmodern
theorist, contends that marriage has fostered a particular type of heterosexual
identity, namely the “conjugal self.”[38] Marriage has been the complex cultural site
for heterosexual bonding. A rich history
and a complex heritage of symbols, myths, theologies, traditions, poetry, and
art have clustered around the marital bond.
Marriage encodes a unique set of aspirations into human
culture: permanent opposite-sex bonding, procreativity, and
parent-child connectedness. Changing
core features of marriage must impact the self-identity of those whose lives
are shaped by this institution.
The gay marriage project requires deep change to the core
identity of marriage (“the lawful union of one man and one woman to the
exclusion of all others”). In order to
collapse the distinction between same-sex union and opposite-sex marriage you
have to reconfigure the institution of marriage by carving off a number of key
concerns critical to the heterosexual experience and meaning of marriage. Many same-sex advocates celebrate the fact
that inclusion of gay and lesbian experience will be “subversive.” Minimally, it forces a deflation of the
marriage category that must bleach out central features of marriage from law
and public policy: a) marriage as a
cultural affirmation and support for the unique place of opposite-sex bonding
in the human community; b) the
sex-opposite character of conjugal categories (husband/wife; father/mother); c) the significance of the procreative
dimension of conjugal bonding; d) the public affirmation and protection of the
unique connection between children and their natural parents. In effect, the inclusion of gay and lesbian
unions forces the law and public policy to re-tune marriage and family to
same-sex experience.
A deep redefinition of this core feature (male/female union) of marriage is similar in nature to other efforts to redefine marriage through the inclusion of a fundamentally new category. The Mormon marriage project entailed the deletion of a core feature of marriage (the dyadic nature of marriage) in order to inflate marriage to include the category of multiple-partner relationships. William Eskridge notes the similarity between the gay marriage project and the Mormon marriage project. He argues that the legal and political condemnation of the Mormon marriage project was an unjust and repressive form of “Kulturkampf” similar to current exclusionary laws against homosexual unions.[39]
Persons of diverse sexual identities and communities have a
fundamental right to dignity and respect.
One may put forward alternative visions of sexual identity and develop
alternative communities and structures to sustain that identity. That is certainly an option within a
pluralistic community. However, these
alternative constructions should not be predicated on deconstructions or
reconstructions of institutions critical to the sexual identity and life of
other citizens. To use legal or
political mechanisms to hack into an institution vital to the ‘conjugal
identity’ of the heterosexual ‘community’
and to reconfigure that institution to serve a very different type of
sexual identity, puts forward an aggressive claim that goes far beyond concerns
for dignity and respect.
Even passionate advocates of inclusion have seriously
questioned this claim to marriage as an indispensable “right” or “remedy” for
same-sex persons.[40]
Mutual respect and recognition should not subvert the right
of others to maintain and foster the integrity of their own unique
institutions. And no institution has
been more central, more vital, to heterosexual life and identity than
marriage. This point is conceded on all
sides of the debate. The same-sex marriage project places a claim
by one social group upon an institution key to the identity of another social
group. Legal and political
proposals to fundamentally redefine an institution so central to the sexual
identity and life of so many citizens do not represent the inevitable progress
of fundamental human rights. These proposals
represent a misapplication of rights that can only serve to further the ongoing
destabilization of an institution vital to the social ecology of heterosexual
life.
Conclusion
Liberal democratic polities should
work together for a society that treats all persons, whatever their sexual
orientation, with profound dignity and respect. However, upholding dignity and respect for
gays and lesbians does not require assent to demands for the reconstruction of
an institution fundamental to heterosexual bonding and critical to the social
ecology of the human life.
Legal tampering with core features of marriage has social repercussions.
Legalization of polygamy had
significant ramifications for the social ecology of marriage in polygamous
societies. In our own recent experience,
the liberalization of divorce laws did have significant outcomes for spouses
and children that we are only just beginning to assess.
The same-sex marriage project
requires a redefinition of the core features of marriage. On both sides of the debate there is
widespread recognition that this reconfiguration will impact marriage and the
ways in which heterosexual identity is shaped by marriage. Predicting the exact ramifications of this
revolution is difficult. But previous history
indicates that when core features of marriage are tampered with (e.g. polygamy
and divorce) we can safely predict that the impact will be significant. Same-sex marriage advocacy regularly repeats
the mantra “show us the harm.” Those
who challenge the gay marriage demand are expected to deliver hard evidence of
some form of future possible harm. But
perhaps, as we consider a fundamental reconfiguration to the legal character of
marriage, the shoe should be on the other foot.
There are vital concerns that need serious and sustained
deliberation.
v How
intellectually sound are the new perspectives and paradigms informing current
legal and public policy proposals for the redefinition of marriage, parenthood,
and family?
v What will
the future hold for a society no longer able to offer any special recognition
in law or public policy for a form of social-sexual bonding so central to human
experience?
Will the required deflation of the meaning of marriage to long-term adult-sexual bonds serve to further destabilize this institution, confuse its social significance for future generations, and deflect it from its central purposes?
v
v Will the
inclusion of same-sex unions force the ratification of a reproductive
revolution that will end any semblance of public commitment to maintain a
relationship between children and their natural parents?
v Will this
redefinition of marriage set new precedents and principles in motion that will
wrench open the door for further challenges, e.g. pressure for non-monogamous
multiple-partner marriages already the subject of serious discussion in gay and
lesbian circles?
Aside from Canada, no
court in the world has decided that the opposite-sex definition of marriage
violates fundamental rights and freedoms.
Even the Holland Supreme Court rejected this view and left it to
the Holland legislature to do its own revamping of marriage. In the Ontario decision for same-sex marriage
Justice Laforme denounced any attempt to argue for the social uniqueness
(“superiority” in his slant) of heterosexual bonding. He declared such views “repugnant.” What if the courts in effect condemn the
opposite-sex definition of marriage as repugnant, hateful and discriminatory?
What if a new authoritative norm of marriage is imposed upon public life? Would this new judicially-mandated concept
of marriage effectively stigmatize all future efforts to speak to or promote
the historic, but now “repugnant,” opposite-sex vision of marriage in public
discourse or education?
This may be the time for
sober-minded second-thoughts. A zealous
layer of advocacy scholarship has crystallized around the demand for same-sex
marriage over the last ten years. It is
very thin ice for legal and political decision-makers to be skating on. The drive to reconstruct this crucial
institution makes an emotive appeal to values of “tolerance,” “inclusion”, and
“diversity.” These values may be
appropriate for refereeing functional and political associations, but they may
be completely inadequate for handling the complex and primal conjugal reality
of marriage.
[1] See David L. Chambers
discussion of LAMDA’s legal strategies in
“Couples: Marriage, Civil Union, and Domestic Partnership” in Creating
Change: Sexuality, Public Policy, and Civil Right. edited by John D’Emelio,
William B. Turner, Urvashi Vaid, New York: St. Martin's Press, 2002, p.281-304.
[2] William N. Eskridge Jr. , Equality
Practice: Civil Unions and the Future of
Gay Rights New York: Routledge, 2002.
Eskridge’s contention that civil unions lay the legal groundwork for
future developments was born out by the Quebec Superior Court ruling on
same-sex marriage. Justice Louise
Lemelin notes that the difference
between marriage and the newly created Quebec “civil unions” is a difference in
name only. She concludes that denying
gay couples the name ‘marriage’ when they already have the substance of
marriage through ‘civil unions’ amounts to little more than an odious “separate
but equal” doctrine. (Hendricks and
LeBoeuf v. Quebec) A similar view was expressed by Justice
LaForme in the Ontario decision: "Any "alternative" to marriage, in my
opinion, simply offers the insult of formal equivalency without the Charter's
promise of substantive equality." (Halpern
v. Canada)
[3] Halpern v. Canada, para. 32
[4] For example, Eskridge’s argument for the similarity of same-sex and opposite-sex relationships cites as his authorities the research of close relationship theorists Letitia Anne Peplau and Susan D. Cochrane (“A Relationship Perspective on Homosexuality” in David P. McWhirter et al., Homosexuality/Heterosexuality: Concepts of Sexual Orientation. New York: Oxford University Press, 1990. (Eskridge, The Case for Same-Sex Marriage, 109, fn.6).
[5]
John Scanzoni, et
al. The
Sexual Bond: Rethinking Families and Close Relationships. Newbury Park: Sage Publications, 1989.
p.9. For an analysis and critique of
close relationship theory see, Daniel Cere “Courtship Today: The View from
Academia” in Public Interest Spring, 143 (2001).
[6] Anthony Giddens, The Transformation of Intimacy. Stanford CA: Stanford University Press, 1992; Anthony Giddens, Reith Lectures, 1999.
[7] On these disparate social ecologies see William Eskridge Jr. Gaylaw: Challenging Apartheid in the Closet Cambridge Mass. Harvard University Press., 1999, p. 11
[8] John Boswell. Christianity, Social Tolerance, and Homosexuality Chicago, IL: University of Chicago Press, 1981; Same-Sex Unions in Premodern Europe. New York, NY: Villiard Books, 1994
[9] See William N. Eskridge Jr., “A History of Same-Sex Marriage,” in The
Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment New York: Free Press, 1996, ch. 2.; E.J. Graff, What is Marriage For? The Strange Social History of Our Most
Intimate Institution. Boston Mass.: Beacon Press, 1999. Eskridge argues that same-sex marriage has
been sanctioned in some non-western cultures:
see William Eskridge, “A History of Same Sex Marriage,” 79 Virginia
Law Review 1419, (1993) 1510-11.
However, careful scrutiny of Eskridge’s examples suggests a very different
conclusion. Some cultures have tolerated
same-sex unions, but they have never sanctioned same-sex marriage. See
Peter Lubin & Dwight Duncan, “Follow the Footnote or the Advocate as
Historian of Same-Sex Marriage,” 47 Catholic University Law Review. 1271
(1998) 1324-25.
[10] William N. Eskridge Jr., Gaylaw: Challenging Apartheid in the Closet Cambridge Mass. Harvard University Press., 1999, p. 11
[11] The 2001 census data indicates that there are
32,400 same-sex couples in Canada. Only
a very small fraction of these couples (15% of lesbians and 3% of gays) have
children.
[12] William N. Eskridge Jr., Gaylaw: Challenging Apartheid in the Closet Cambridge Mass. Harvard University Press., 1999, p. 11
[13] This new view of parenthood
has wider and controversial legal implications, some of which are explored in
the American Law Institute’s report on the Principles of the Law of Family Dissolution.
[14] Current legislation in Quebec dealing with sperm donation places the rights of adults over the rights over the rights of children to know their biological parents.
[15] William N. Eskridge Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment New York: Free Press, 1996, p. 109.
[16] In the modern era there has
been a concerted effort to cleanse marriage of its patriarchal elements. Social critics argue that this baggage is
irrelevant to the core purposes of marriage,
unnecessarily burdens the institution of marriage, and distorts the
interpersonal nature of the male/female bond.
[17] In 1972 the U.S. National Coalition of Gay Organizations drew of a list of basic demands for legal reform. One central item was “the repeal of all legislative provisions that restrict the sex or number of persons entering into a marriage and extension of marriage to all persons who cohabit regardless of sex or numbers.” (quoted from Eskridge, Equality Practice 2002, 5)
[18] Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships , Ottawa, 2001. p. 133, fn.16.
[19] Judith Wallerstein, Julia M. Lewis, Sandra Blakeslee. The Unexpected Legacy of Divorce New York: Hyperion, 2000. There is a debate whether divorce reforms merely reflected or reinforced a “culture of divorce.” However, even cautious analysts argue that “no-fault divorce” was one contributory factor to the rise in divorce rates. See L. Friedberg, “Did Unilateral Divorce Raise Divorce Rates?” American Economic Review 88 (1998) 608-627. The scholarly debate on divorce is far from over.
[20] Even William N. Eskridge Jr., a liberal legal theorist and same-sex marriage advocate, argues that no-fault divorce reforms have “diluted” marital commitment and deserve a sober second look. Eskridge is also sympathetic with “covenant marriage” proposals that establish contracts “with greater commitment.” Equality Practice, 124.
[21] Beyond Conjugality, p.3.
[22] This misleading perspective dates from Kinsley’s poorly researched, but popular, text on male sexuality published in 1948 (Kinsey, A. C., Pomeroy, W. B., and Martin, C. E. Sexual behavior in the human male. Philadelphia: Saunders, 1948). Carefully designed research on large representative samples concludes that only 2.8% of men identify themselves as gay and l.4% of women identify as lesbian. These rates of gay and lesbian identification coincide with rates for exclusive same-sex experience (3% for men and 1.6% for women) (see Laumann, E. O., Gagnon, G. H., Michael, R. T., and Michaels, S. The social organization of sexuality: Sexual practices in the United States. Chicago: University of Chicago Press, 1994). Other researchers using more sophisticated statistical analysis of data sources have reached similar conclusions. Black et al. (2000) estimate that only 4.7% of adult men and 3.5% of adult women have engaged in at least one same-sex experience. Of that number only 2.5% of men and 1.4% of women had engaged in exclusively same-sex activities over the year preceding the survey. (Dan Black, et al., "Demographics of the Gay and Lesbian Population in the United States: Evidence from Available Systematic Data Sources," Demography 37 (May 2000).
[23] About one percent in the United States and about half of one percent in
New Zealand.
[24] Recent surveys indicate an increasing majority young women (80%) and men (72%) cite stable marriage as a key aspiration that is “extremely important” to their happiness and well-being. Survey data also indicates that young people are more pessimistic about their actual ability to achieve this goal in today’s society. Research also indicates that other forms of heterosexual bonding (e.g. cohabitation) compare poorly to marriage on a whole range of indicators. The State of Our Unions: The Social Health of Marriage in America, National Marriage Project, Rutgers University, 2000; David Popenoe and Barbara Dafoe Whitehead, What Young Adults Need to Know About Cohabitation Before Marriage: A Comprehensive Review of Recent Research. Second Edition National Marriage Project, Rutgers University, 2002
[25] Nancy F. Cott, Public Vows: A History of Marriage and the Nation, Cambridge Mass.: Harvard University Press, 2001.
[26] Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Relationships. 2001, 128
[27] Nicholas Bala, “Context and Inclusivity in Canada’s Evolving Definition of the Family” International Journal of Law Policy and the Family. 16(2002) 147.
[28] See Janet R. Jacobsen and Ann Pelegrini, Love the Sin: Sexual Regulation and the Limits of Tolerance. New York: New York University Press, 2003; Larry C. Backer, “Religion as the Language of Discourse of Same Sex Marriage” Capital University Law Review. (2002) 221-278 )
[29] William Eskridge, The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment New York: Free Press, 1996, 165-67.
[30] Beyond Conjugality, p.129.
[31] Halpern v. Canada para. 202, 260.
[32] Hendricks and LeBoeuf v. Quebec, para. 134.
[33]Hendricks and LeBoeuf v. Quebec, para. 18.
[34] William Eskridge, Equality Practice, p. 139-47.
[35] Eskridge views civil unions as an attempt to meet the needs of gay, lesbian, bisexual, and transgendered (GLBT) persons rather than segregate them. (Eskridge Equality Practice 2002, 141-42) The Vermont Baker v. State decision “deliberated about same-sex marriage or unions in a way that treated GLBT people as citizens whose distinctive as well as normal lives merited respectful analysis.” The intention of civil unions was to move towards “substantial equality,” to narrow and eliminate “the gap between rights accorded married different-sex couples and those unioned same-sex couples.” (142-43). Eskridge notes that there is a basic “difference between the separate-but-grossly-unequal regime of racial segregation and the different-but-substantially-equal regime of civil unions”. (144)
[36] Eskridge sees civil unions as a very positive step that moves us away from an “apartheid of the closet” towards a full equality that will ultimately only be realized with the advent of same-sex marriage. (Eskridge 2002, 145-47). He sees it as a pragmatic move, an equitable compromise, in the gradual movement towards complete equality. (Equality Practice 2002, 145-47)
[37]
Ladelle
McWhorter. Bodies and Pleasures: Foucault and the Politics of Sexual
Normalization. Bloomington: Indiana
University Press, 1999. p.125.
[38] Michel Foucault, The History of Sexuality, vol.3, New York: Vintage, 1988, p.72-80.
[39] William N. Eskridge Jr., Gaylaw: Challenging Apartheid in the Closet, p.296.
[40] In Canada the former vice-president of the Quebec Human Rights Commission, Maurice Champagne was instrumental in having sexual orientation added to the Quebec Human Rights Charter. However, he sounded a note of alarm when the same-sex marriage challenges were launched in 1998. Champagne argued that the struggle for a more open and inclusive society doesn’t entail this project of redesigning the social core of marriage. “Just Asking…” The Gazette, Montreal Sat. April 25, 1998, B10. This article was co-authored by Maurice Champagne and a group of professionals working in the areas of psychology, social work, status of women, and the family and human rights.