An Essay By Eric Picard, Copyright 2012
I feel that the time has come for me (and please – many others) to make a public statement in support of same sex marriage. This is an issue that I feel strongly about, and hasn’t been given the kind of rational debate that it needs. I haven’t heard a single argument against gay marriage that is anything other than personal, cultural or religious bias. Given that marriage is a legal contract, and that it can be performed as a civil ceremony (by a judge or justice of the peace), no religious argument can stand in this debate, at least within the United States where there is a clear separation of church and state.
Friends of mine on the other side of this debate have frequently made arguments against it, but I have not heard one argument against same sex Marriage that withstands the most basic scrutiny on any rational basis. Recently a friend’s daughter tried to do just that, and posted a link to this document on the Harvard Journal of Law and Public Policy web site ( http://www.harvard-jlpp.com/wp-content/uploads/2011/08/GeorgeFinal.pdf ) that tries to set up the argument that Marriage should be only between a man an woman. Because it was published by a venerable and reputable institution, it is being held up as a rational and viable set of arguments.
This document is biased and uses pejorative language, and it states the opposing position in an unfair and diminished way. It describes those in favor of same sex Marriage as Revisionist, and those opposed to same sex Marriage as supporting the “conjugal view”. At the heart of their position is that, “Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity.”
The operative point here being “bearing” of children, which diminishes any couples who either decide not to bear their own children in favor of adopting (or not having children at all) or who are unable to bear their own children. This paper recognizes that same sex Marriage proponents are likely to use this argument, then goes on ostensibly to refute it, but actually does not refute this in any way, offering only a very weak baseball analogy. Throughout this document there are philosophical discussions about the nature of Marriage – but no place are definitive arguments that concretely (even weakly) prove their thesis. The authors state positions and opinions as fact, without any basis.
The acid test here is simple for me. If a man were to lose his penis and testicles in an accident, and then wanted to marry a woman, this couple would inherently not meet the criteria of the authors of this paper as being able to achieve “organic bodily unity… (through) …an act of the kind that causes conception.” Does this mean that there would be no possibility of a valid marriage? Would the authors claim that this couple should not be allowed to be married, despite a deep abiding love, a desire to share their lives, or despite a desire to raise a family together?
The authors of this paper argue that the logical conclusion of allowing same sex Marriage is to allow marriages based on polygamy, incestuous relationships, and bestiality. Yes, they argue that if we allow two men or two women to become married, that we will have to allow people to marry their parents, children, neighborhood, dogs, cats, sheep, or cattle. That’s the argument they have against same sex Marriage, that it will lead to “Dogs and cats, living together! Mass hysteria!” Oh wait, that last one was Bill Murray in Ghost Busters.
The injection of polygamy, incest and bestiality into a discussion about same-sex marriage has been engineered propaganda style to give some ‘pat’ arguments to those on the other side of this issue that don’t require being articulate or the ability to analyze. It’s a dirty trick disdained in debate as “changing the subject”. It’s intellectually dishonest to change the subject, and the way the subject is being changed is offensive – the theory is that if you relegate same-sex marriage to the same ‘class’ of discussion as these others that are extremely polarizing you can discredit and weaken the case.
These are not tactics of rational evaluation, they’re tactics of changing the topic (from a debate perspective) and injecting an emotional unrelated topic into one that’s already emotional (from a human perspective), and smearing and discrediting the debate at hand (from a political perspective). Polygamy is irrelevant to the discussion of same-sex marriage. If you define marriage as *one* man and *one* woman, then the debate about polygamy is one to have about the word *one* (or in reality two, since that’s the real heart of the matter). If we were having a debate about the validity of polygamy, there are lots of conversations we could have.
But polygamy is not part of the debate about same-sex marriage in the US. The only people making it part of the discussion are those that are opposed to same-sex marriage. And the insertion of a ‘third rail’ into the discussion is an irrelevant red herring that shifts the debate into something much more convoluted.
At the end of the day, this is about equality. Its about giving same sex couples the same rights that you and your wife (or you and your husband) currently have. And its about being clear that marriage is a fundamental right that is sealed with a contractual agreement between two adults who make a commitment to each other in front of witnesses and the community so that they can live as a family.
So let me dispatch the paper I began with by saying it doesn’t prove its point nor offer any credible arguments against same sex Marriage. Beyond this single issue of reproduction and “child bearing” versus child rearing, marriage is a legal contract between two people that binds them together in the community in a very important way. It requires of the community that they will stand up and support those two people in their relationship, and it legitimizes that relationship and the commitment made publicly among friends and family.
We allow the spouse special rights that nobody else shares: Rights of shared property, rights of medical and legal decisions, special tax rights, and many others. These rights and rules are civil, not religious, and should be granted to any committed couple that is willing to take on the other things that come with a marriage – which are obligations rather than rights. There are binding tax obligations that one takes on when married, as an example.
Civil Unions can grant the legal rights I’ve covered – but there’s still a problem here. To block anyone from the full rights afforded others is not just. Separate but equal was a term used during racial segregation and was clearly wrong, and it still is. Essentially blocking any couple from the right to marry is the same as telling them that they are less than equal, that their love is less than the love held by a heterosexual couple, and that their commitment to each other and their family is somehow lesser or less valuable or less real than that of a heterosexual couple.
To stand against gay marriage is to say that those people are less than you. That their relationship is less valuable or real than the one between a man and woman. That they shouldn’t have the same rights as you because they are less than you. And that Government should block those people from having those rights that you enjoy as a heterosexual couple.
Let’s read the relevant passage from the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men…”
The Declaration of Independence is not a legal document, but it is philosophically the cornerstone upon which the constitution was built – and written by the founding fathers in the same exact timeframe that the constitution was written (same people, same time period, same intent). This concept of “unalienable rights” or “fundamental rights” is such a clearly true and beneficial concept that I’m shocked anyone would argue against it. It means that you can’t write laws that violate these, or the laws are not based on truth and are unjust.
The way a married couple’s property rights are handled is inherently tied to the fact of their marriage. Marriage is a “fundamental right” per numerous supreme court decisions, but more importantly – anyone who argues that marriage is not a fundamental right is pushing this issue for one reason – to try to keep control of something they believe is “theirs” and to keep “their” thing out of the hands of someone they don’t want to have it. Marriage is a fundamental human right, and is not something that can be refused to someone. And according to the Supreme Court, it is a civil right we all have – a fundamental one.
My point in defending the rights of all men and women to be treated equally is kind of hard to argue with unless you truly believe that these particular men and women are not equal. And if that is the root of the belief driving your argument, then you should be willing to stand up and argue that position, and not make it about other issues.
Same sex Marriage is by its very definition a civil rights issue. It’s about equality of people, equality of rights and of value. All of us have the unalienable right to Life, Liberty and the pursuit of Happiness. Unalienable means that it is native – that it is inherent, it is not something that can be taken away by a law, which is exactly what Thomas Jefferson was saying. That we all have the same rights.
So back to the paper that I began with, which repeatedly states that proponents of same sex Marriage “have only rarely (and vaguely) explained what they think marriage is”, let me use their own definition with a few important adjustments:
Rational View: Marriage is the union of two people who make a permanent and exclusive commitment to each other of the type that is legally binding and can be fulfilled by forming a family unit, sharing property and rearing children together. The spouses seal and renew their union through acts of physical intimacy, thus uniting them as a family unit. Marriage is valuable in itself, but its inherent orientation to the rearing of children contributes to its distinctive structure, including monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.
Eric Picard 
14 responses to “In support of same sex marriage”
I don’t see how there is anythign “red herring” about discussing the four historical (at least in America and throughout most of modern western civilization) exemptions to who can get married:
1 – You can’t marry your brother or sister
2 – You can’t marry a child
3 – You can’t marry someone of the same sex
4 – You can’t marry someone who is presently married
The culture is debating number 3. But these are the standard, historical views of what is not allowed to be defined as a marriage. Your description of a relationship above could be used to define turning around any of the above exemptions as well.
You would have to be for allowing all of the above exemptions to be overturned in principle in order to support overturning any one of them, especially based on your description in your final paragraph.
DH – it is a red herring. Making the debate about incest, pedophilia, polygamy, or (what you didn’t include, but others do) bestiality is what formal debate calls, “changing the subject”. It’s considered bad form and doesn’t win debates. By injecting these other topics that are considered taboo – and frankly are much more politically and emotionally charged than gay marriage – you are attempting to change the conversation away from the actual issues. This line of debate is much more of a PR tactic than actually being part of a legitimate discussion about gay marriage.
Many cultures of this “modern world” allow, and almost dictate the marrying of children. We are rational enough to distinguish right from wrong. DH, if you were writing this in the 1950’s number five would have read “5 – you can’t marrying someone who is not the same skin color as you.” and I’m sure you would have supported that, as that was a historical exemption on who could get married. We are a smart enough country to understand when someone is not being treated equally, we are also smart enough to understand who has the ability to consent to marriage.
Did the Establishment clause of the constitution establish ‘secularism’? Does it really mean that religion has no voice in the public square?
We all have a voice. No voice louder than any other. This isn’t about religion. This is about civil rights. The two things are not intertwined. But many folks whose religious beliefs forbid homosexuality for some reason believe that this grants them the right to give their religious beliefs precedence over another person’s civil rights.
It’s not an established given that this is a civil rights issue. Licensing is a civil instrument by which the state manages its interest since a new legal entity is created when a marriage takes place. But when did that become what a marriage *is*? What is your basis for asserting that the state alone has any legitimate interest in determining who may marry?
I believe that I addressed your assertions in the body of this article. The case I’ve made is that marriage is a fundamental or unalienable right. One of the primary reasons government exists is to protect fundamental rights. And historically popular vote has not proven an effective way to ensure that fundamental rights have been granted equally to all people. I would argue that it is specifically the job of government to ensure that fundamental rights are granted equally to all citizens. It’s possibly the most important function of government.
So what case are you making here? For me, marriage is a social contract administered by the state. That makes it civil. The Supreme Court has repeatedly decided that marriage a fundamental right. If this isn’t a job for the government, I can’t imagine what is. You ask if the state alone has a legitimate right to determine who may marry. As far as the civil right to marry, which the state (and I) consider to be a fundamental right, yes – this is their job.
Churches certainly have the right to determine who they will minister to. For instance, the Catholic Church refuses to marry people who are divorced. But the state treats divorce as the dissolution of a marriage contract, and allows a new marriage to take place. Thank goodness for government in that case.
What you want *me* to state a case? It’s your blog post buddy. 🙂 Fair enough. But let me clarify why I approached it the way I did so you don’t think I was being obnoxious for no reason (I’m not disputing the obnoxious part). You stated your rules of engagement in your opening paragraph and I’m reasonably sure that we do not agree on the foundational presuppositions but it seemed reasonable to test that. Didn’t seem much point in getting wrapped up in the B part of A -> B if we don’t even agree about A. That is one of the reasons why discussions about this usually feel so unproductive. So, when time permits, which is not right now, I will try to follow this up.
Ha! I look forward to your comments. Look – this is a hot-button issue for a lot of people. I don’t expect everyone to agree with me. But I do believe in dialogue – especially if it’s polite even if ‘clear to the point of being obnoxious’. You’re an honorable and logical guy. We’ve already established in past discussion that we have different world views, but also that we can be respectful of each other. I don’t debate well in real-time because I’m not a fast thinker. But I do think a lot about things, and I’m actually interested in your views. That said, once you start talking – you should finish. 🙂
Most of the time what I find is that people who are opposed to Gay Marriage are opposed for personal reasons that are generally based in a religious point of view. And generally I’ve found that their arguments about this not being a civil rights issue is more about not wanting to concede that point because they feel like it paints them as bigoted if they’re on the ‘other side’ of a civil rights issue. That may or may not be true, but it’s not what I’m after at all in this dialogue. If someone ultimately has a belief based argument that in their faith there are prohibitions on something, then I’m fine with them honoring their faith. I may not agree with them, but their faith is their business. But where I do end up taking offense is where someone of one faith attempts to push those beliefs on someone else about issues that are in fact civil rights issues.
Now – I know you well enough that I feel like you’ve got some very clear logic based position regarding whether this is in fact a civil rights issue (I could be wrong – maybe it’s a logic based position about something else.) And I want to understand people’s issues and the position you have. Even if we end up disagreeing. 😉
Religion has no voice in the public square. Religion has it’s voice within the walls of it’s church and within it’s temples, and that’s where it should remain. When it comes to the social institute of marriage, it should be identified by the state. A church can still have the right to refuse to marry someone under their roof, but they cannot enforce their beliefs on anyone else. It would be the same answer if the Jewish religion wanted to make law that everyone eat Kosher. Freedom of religion is the freedom to practice what every religion you’d like in this country, not the freedom to push religious beliefs upon others by making it law.
Sorry, I should have been more clear and said, “when time permits (soon, but not this instant) I will follow this up. At that I almost feel I should have spent more time on this. Still…
* When I say God, I mean the God of Abraham, Isaac and Jacob, the father of Jesus Christ (just to be explicit – if not exhaustive).
* God made the world.
* God made marriage.
* God made human governments.
There are [at least] three realms of human goverment each with limited sovereignty within their respective jurisdictions: The family, the church, and the state (or civil realm). Each is answerable to God for the conduct of their respective jursidictions. The state is not somehow severed from it’s responsiblity toward God.
Civil officials can and must necessarily govern according to their conscience before God. This does not contradict the establishment clause of the constitution (although it could certainly be abused in such a way that it would – the world is messy). The civil realm (like church and family), must draw lines and make distinctions. They will have to do this based on something (faith in God, faith in humanity, faith in science), but they cannot avoid doing it. Whatever the establishment clause was meant to do it was not meant to sever civil officials from their faith, as if that were possible. Nor was it meant to ensure that the laws of the land would somehow be suspended on hooks in mid-air that are in no way traceable to what people believe. But just to be clear…even if the establishment clause *were* meant to do all these things – it would not somehow magically banish God from the public square. He’s not so easy to get rid of as that. There are things that are right, and things that are wrong, and a majority vote doesn’t change them. It just changes whether we are in rebellion against them.
Marriage is not executed by the state (or by the church for that matter), it is executed by two families. If this seems detached from reality consider common-law marriage. The church and the state both have an interest because a new family just came into being. They need to establish diplomatic relations, as it were, with this new entity.
If two families establish a marriage in defiance of the pattern God has established it doesn’t necessarily fail the test of being a marriage. But the church and state do not have to add to the defiance by giving it their sanction – both of them have their own means of recourse.
I believe that a same-sex marriage is a rebellion against God, and for the civil realm and/or the church to sanction it just adds their voice to that rebellion. Obviously, I believe it’s a bad thing for individuals to be in rebellion against God, but systematic high rebellion at the societal level has disastrous consequences for that society. Same-sex marriage redefines at the core one of the three realms of government that make up our society. I can’t accept that the impact will be isolated and benign.
Understand that this has nothing to do with personal animosity toward homosexuals, but I do not believe it constitutes a civil-rights issue (and yes – people bridal at the term because if feels like a transparent ad-hominum against anyone opposing same-sex marriage). If I understand you correctly you are maintaining that there is a line somewhere that differentiates who may marry and who may not. At least you went out of your way to assert that it is a red herring to extrapolate from same-sex marriage to a further broadening of marriage. If that is the case, some people are going to be on the side of that line that says you may not marry. So I don’t see that there can be an objection to the idea, in principle, that there is a line that excludes someone from marriage. This isn’t about being mean to homosexuals, but that line is going to fall somewhere.
Nor does homosexuality fall into the same category as race. I am not making an argument regarding whether it is a choice vs. whether it’s genetic. That really is a red-herring. It could be argued that men in general are not biologically well suited to monogamy. It could be argued that men are not biologically well suited to permanent relationships at all. And yet what God calls us to is to die to our genetic code every day so that one man can remain married to one woman for life in order to accomplish something more than following their biological predilections. Now that is madness – or divine genius.
Richard- I don’t understand your argument. You say that God made marriage. In the bible it says that men may have many wives simultaneously. This is the marriage that God made. So, what argument are you making about one man and one woman exactly?
This is not a religious issue since we don’t live in a theocracy. We live in a secular society, whose laws are not made based on the interpretation of the bible, but on what people believe to be right. In this framework, your opinion is equally valid vis-a-vis any other citizen’s. But the argument that your opinion should prevail because it is “what God wants” is not sustainable.
Eric’s argument is made based on reason and social issues – when yours is limited to those constructs, then a wonderful discussion will be held.
Rich – I respect you. But ultimately what this comes down to is your religious beliefs. While you may hold those as dearly as you like, I simply don’t hold them myself, and refuse to be held to someone else’s religious beliefs for how I live my life – and that is at the heart of the separation of church and state.
Well said Eric, I agree.