Just Married

Same-Sex Couples, Monogamy, and the Future of Marriage

Stephen Macedo

• Publisher: Princeton University Press
• Year: 2015
• ISBN:
  9781400865857
• Topic: Jura
• Subtopic: Familienrecht

The case for marriage equality and monogamy in a democratic society The institution of marriage stands at a critical juncture. As gay marriage equality gains acceptance in law and public opinion, questions abound regarding marriage's future. Will same-sex marriage lead to more radical marriage reform? Should it? Antonin Scalia and many others on the right warn of a slippery slope from same-sex marriage toward polygamy, adult incest, and the dissolution of marriage as we know it. Equally, many academics, activists, and intellectuals on the left contend that there is no place for monogamous marriage as a special status defined by law. Just Married demonstrates that both sides are wrong: the same principles of democratic justice that demand marriage equality for same-sex couples also lend support to monogamous marriage.Stephen Macedo displays the groundlessness of arguments against same-sex marriage and defends marriage as a public institution against those who would eliminate its special status or supplant it with private arrangements. Arguing that monogamy reflects and cultivates our most basic democratic values, Macedo opposes the legal recognition of polygamy, but agrees with progressives that public policies should do more to support nontraditional caring and caregiving relationships. Throughout, Macedo explores the meaning of contemporary marriage and the reasons for its fragility and its enduring significance. His defense of reformed marriage against slippery slope alarmists on the right, and radical critics of marriage on the left, vindicates the justice and common sense of the emerging consensus.Casting new light on today's debates over the future of marriage, Just Married lays the groundwork for a stronger institution.

PART I

WHY SAME-SEX MARRIAGE?

CHAPTER 1

GAY RIGHTS AND THE CONSTITUTION OF REASONS

The public debate over gay rights generally and marriage rights specifically has ranged far and wide for over two decades: across courtrooms, legislatures, and political campaigns; in churches, schools, universities, the military, homes, workplaces, and clubs and associations such as the Boy Scouts of America; in the news media and on the Internet. Scholars have revisited and revised older debates and generated new arguments and evidence, with the humanities and sciences playing important roles. Movies, literature, music, photography, the theater, popular television, and other art forms have all played important roles in the ongoing debate, as have professional sports, beginning with women’s tennis and finally reaching to men’s professional football. It is no exaggeration to say that every department of American life has joined our national conversation on gay rights. The upshot? The national tide has clearly shifted, and the victories for same-sex marriage in the nation’s courts and legislatures have turned from a trickle to a broad tide reaching much of the country.

Just as astonishing as changes in the law are those in the public mind. In 1988, when first asked about this in a national poll, only 12 percent of Americans agreed that “homosexual couples should have the right to marry one another.”¹ Same-sex marriage was opposed in 1996 by a margin of 68 percent to 27 percent, according to Gallup polls. In 2004 the margin had closed to 55 percent against, 42 percent in favor. By 2011, 53 percent favored recognition of same-sex marriages, and in 2014, 55 percent favored and only 42 percent were against. Americans over 50 years of age still opposed same-sex marriages, but younger respondents—those 18–29 years of age—were in favor by 78 percent to 22 percent. Public opinion is currently shifting at the rate of approximately 1.5 percent per year.² I am aware of no similarly fraught public moral question that has ever witnessed so sudden and dramatic a shift.

This chapter and the next two present the main arguments that have been advanced by conservatives in opposition to gay rights and same-sex marriage. Given the profound changes in law and public opinion, why reconsider the arguments against and for same-sex marriage now? One reason is that our political community is and will remain deeply divided. Large majorities of “conservative” Americans, older Americans, those who attend church very regularly, and those who live in rural areas are opposed to same-sex marriage.³ In addition, Americans often seem divided within themselves, and many who favor same-sex marriage seem to have serious reservations. When a poll in May 2012 offered Americans the option of allowing gays and lesbians to get “a legal partnership similar to but not called marriage,” only 37 percent of those polled favored legal marriage for same-sex couples: fully 33 percent of those polled selected “legal partnership … not called marriage,” while 25 percent favored “no legal recognition.”⁴ As recently as 2012, roughly the same number of Americans polled described sexual relations between two adults of the same sex as “always wrong” as said it is “not wrong at all.”⁵ Genuine enthusiasm for marriage equality likely remains a minority position. Whatever particular courts and legislatures decide, Americans will likely remain deeply divided for many years to come. It still matters not simply that our politics is shifting but why.

The global divide is even more profound. While large majorities of citizens across western Europe and Canada affirm that homosexuals should be “accepted by society,” according to recent Pew Research polls, only a small minority of Russians do so. Lack of acceptance generally prevails across Africa, with the partial exception of South Africa. In the Middle East, only Israel exhibits a fairly high level of acceptance, and in many Middle Eastern and African nations, gay and lesbian people are subject to horrible forms of prejudice, discrimination, and violence. In Asia and around the Pacific, there are vast differences between very accepting countries, such as Australia and the Philippines, and large countries like Pakistan and Indonesia where only 2 or 3 percent of people say homosexuality should be accepted. In Latin America, Argentina and Chile are very accepting; El Salvador and some other countries, less so.⁶ The world is deeply divided on gay rights, with poorer and more religious countries tending, though not always, to be less accepting. Same-sex couples aside, the status of monogamous marriage is under pressure in China and up for grabs in some other Asian societies. I hope this book may contribute to the wider debate. Indeed, the “natural law” argument that I focus on exerts global influence via the teachings of the Roman Catholic Church.

I take up the conservative side of the argument, finally, because I share many of their concerns. I hope that some thoughtful dissenters from gay marriage will be provoked into fresh thinking by what follows: this book is addressed to them. Conservatives are right that not all effects of the sexual revolution that culminated in the late 1960s and 1970s have been good. Greater equality for women and greater acceptance and freedom for sexual minorities are among that era’s most positive legacies. But there have also been negative consequences for many children of a weaker family structure, lower levels of marital stability and commitment, and a highly sexualized public environment. Rates of suicide among young people appear to be three times what they were in the 1950, and there are two hundred to four hundred attempts for every successful suicide.⁷ Rates of emotional distress and mental illness appear, by some measures at least, to have increased for many children, and these appear correlated with higher rates of divorce and single parenting.⁸

Conservatives are rightly concerned about the difficulties that many of us face in integrating our sexual lives with deeper and long-lasting friendships, meaningful relationships, and family life. Marriage is a strategy for managing that integrative project as part of a profoundly important and life-shaping commitment. It conduces to greater health and happiness, especially for men. Defenders of same-sex marriage have long noted that marriage is in many ways a conservative institution. Libertarians, liberationists, and some liberals, as we shall see, doubt that marriage is fair given the diversity of people’s conceptions of meaning and value in life. Many adopt an unnecessarily critical posture toward civil marriage. I seek to offer a sympathetic account of marriage that recognizes the importance for many people of marital commitment while also honoring, and indeed helping to secure, the equal liberty and fairness prized by liberals.

We begin by tracing the arc of conservative arguments against gay rights and same sex marriage since the 1980s. We will see the emergence of a demand for better reasons and evidence to justify settling the bounds of constitutional rights, and the emergence of the stated worry that affirming rights for gays and lesbians opens the door to other claims that cannot then be resisted. Such assertions were never well grounded.

CONSERVATIVES IN SEARCH OF AN ARGUMENT

For most Americans in the 1970s and 1980s, the subject of gay rights was both novel and generally regarded as distasteful.⁹ Many would have allowed that gay men and lesbians should be left alone, but few endorsed equal rights or moral approval. The subject was not much discussed, and when it was, there was often a level of hostility and incomprehension that now seems astonishing.

Consider a symposium in 1984 on “Sex and God in American Politics,” published in Policy Review, the journal of Stanford University’s Hoover Institution. The participants were heads or founders of flagship institutions of the political right, including the Heritage Foundation, National Review, Wall Street Journal, Public Interest, American Conservative Union, Committee for the Survival of a Free Congress, Conservative Caucus, Eagle Forum, and Hoover Institution. Consider a sampling of the published comments of these conservative movement leaders:

Homosexuality … is a form of life-denying death ethic in our society. If the homosexual ethic prevailed, that would be the end of the human race.—M. Stanton Evans¹⁰

Homosexuality is one of the ultimate acts of rebellion against God and godly law. It is an act of rejection of traditional authority, an act of self-centeredness and selfishness. It is part of a humanistic world-view … which encourages people to … act in non-productive, existential, self-destructive, and sinful ways. Government should stop … trying to treat homosexuality as something other than wrong.—Howard Phillips¹¹

“It is an abomination unto the Lord.” It is not normal, it is against nature, it produces a social evil. [Gays’ sexual practices are] absolutely sickening. … The people who engage in it need to be pitied, counseled, reached out to in a way that will bring them back, because there is no question that homosexuality is a choice.—Paul M. Weyrich

[T]he homosexuals are trying … to force the rest of us to respect their lifestyle. … We can’t acquiesce in that. It’s like prostitution. … [Y]ou are not going to force us to say that it is morally acceptable.—Phyllis Schlafly¹²

I do not like homosexuality. I think it is a misfortune for a person to be a homosexual. … I don’t want to see homosexuals persecuted by the law or by society. But I believe it is the responsibility of homosexuals … to keep their sexual life as private as possible. No society, certainly not our society, is going to accept homosexuality as being as morally and socially acceptable as heterosexuality. This is something homosexuals must come to realize.—Irving Kristol¹³

Other participants affirmed that homosexuality “is a learned lifestyle, and can be unlearned”;¹⁴ that it “goes against the obvious purpose of creation” and “is contrary to Biblical values and guidelines, and contrary to human nature”; and that measures must be taken to “establish a social environment in which homosexuality becomes less alluring.”¹⁵ And then there was Milton Friedman, God bless him: “I don’t think it is any business of the government, so long as it’s purely voluntary.”¹⁶

Midge Decter, executive director of the important-sounding Committee for the Free World, concluded thus:

One reason for so much homosexuality is the terror that angry, truculent girls and women have introduced into the relations between the sexes. I see young boys absolutely terrified of girls. … So, in my view, homosexuality is a means of escaping from girls, from women. [A]nother factor—and no doubt I could get slaughtered for saying this—is that homosexuality provides a handy escape from manhood, which is to say, fatherhood. It is inevitable, when you have women attempting to escape from womanhood, that you will have men attempting to escape from manhood. I couldn’t say with any assurance that I know which came first. … But they are certainly interconnected.

She ended with an apparent attempt to reassure: “I don’t have any special passion about homosexuals, I live in peace and amity with all sorts of homosexuals. But homosexual activism must be resisted.”¹⁷

*****

Academics who addressed the issue often did no better. Consider Harry V. Jaffa, late professor emeritus at Claremont McKenna College and Claremont Graduate University, and distinguished fellow of the Claremont Institute. An arch moralist, Jaffa developed the “unnaturalness” theme in the 1980s and 1990s with particular vehemence. Gay and lesbian sexual love is “the very negation of anything that could be called a right according to nature,” he wrote, because “the very root of the meaning of nature is generation.” It “violates the order of nature” to use “men as if they were women, or women as if they were men.” Marriage cannot be conceived “apart from the possibility of generation,” and neither should legitimate sexual activity.¹⁸ Jaffa warned that by rejecting the basic guideposts that “nature” offers to human conduct, homosexuals strike at the root of all morality. Indeed, there is no more reason to doubt that sodomy should be a criminal offense than that rape should be. I quote at length because this now seems so hard to fathom: “To release sodomy from such social restraints as still surround it … would be to adopt a neutral attitude toward the family and ultimately toward all morality,”¹⁹ opening the door to incest and to those who “have uncontrollable cravings that can be gratified only by rapes and murders of their victims.” “Homosexuals even more than Communists are enemies of every good thing we associate with the Declaration of Independence,” which Jaffa reads as embodying natural law. “If sodomy is not unnatural, nothing is unnatural. And if nothing is unnatural, then nothing—including slavery and genocide—is unjust.”²⁰

Other conservatives were more elliptical. In 1993 Harvey C. Mansfield of Harvard, one of the most influential and important conservative political philosophers in America, testified in Colorado in favor of Amendment 2, which invalidated government policies designed to protect gay and lesbian citizens from discrimination. Shortly after his expert testimony, he wrote that homosexuality is an “open challenge to society’s sense of shame, as the gays recognize quite well. For if the practices ...