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The Marrying Kind

A final, more general benefit flows from the state’s recognition of heterosexual marriage: in picking out married couples for special grace and favor, the state expresses support for their commitment and respect for their relationship. Dr. Johnson once rightly insisted (with his distinctive mixture of hyperbole and good sense) on the difficulty of the marital commitment and on the importance of the social rules and attitudes that recognize and maintain it:

It is so far from being natural for a man and woman to live in a state of marriage, that we find all the motives which they have for remaining in that connection, and the restraints which civilized society imposes to prevent separation, are hardly sufficient to keep them together.4

Denying that recognition is rightly seen, both by those who favor and those who oppose gay marriage, not only as a refusal to support such marriages, but also as an expression of indifference—even hostility—toward gay relationships. It is clear that for many people (whether or not they want to marry) this standing insult, as they regard it, is the most important issue of all.

A married couple can gain a great deal, then, from legal recognition. They gain it whether their relationship is deep or shallow, faithful or faithless. Any currently unmarried man and woman can wander into a municipal office in their home town and get this full panoply of benefits without even the most perfunctory investigation. (Since prisoners—even those serving life sentences without parole—have the constitutional right to marry, you can get a marriage license even if you can’t wander in off the street.) On the other hand, no two people, however deeply loving their relationship, however sanctified by religious rite or celebrated by their families and friends, can acquire these benefits through the laws of marriage if they are of the same sex.

2.

I have ignored so far the fact that bourgeois romance and the traditional vision of marriage had something in common: neither was a union of equals. The Book of Common Prayer had Mrs. Smith promising to obey Mr. Smith; this was not a promise that Mr. Smith was expected to reciprocate. And she had the major responsibility for raising the children.

Facts like these are crucial in interpreting matrimonial law; they require us to recognize how central the experience of middle-class patriarchy is to the legal meaning of marriage. The practice of allowing a wife access to health and Social Security benefits associated with her husband’s job and his income, for example, emerged when the wives of the middle-class men who had the most valuable forms of insurance and pension provisions did not have incomes of their own. The tax law’s treatment of a couple as a single unit thus at first reflected not the fungibility of two incomes but a shared dependence on one. And alimony was conceived for women whose unfaithful husbands moved on, because being a middle-class wife (and, especially, a mother) meant you didn’t do paid work.

Much of the economic structure of marriage still reflects the old inequality of husband and wife. Access to health care should be something that every adult has for him or her-self, not something that you get as someone else’s dependent. Women with adequate incomes and careers of their own would not have to be dependent on alimony. In sum, some of what straight people—and especially wives—get through marriage, they ought to be able to get without it.

Reflection on the current structure of marriage, therefore, suggests plenty of scope for rational reform. It is clear, however, that such reforms are not about to take place.

The obvious interim solution would be to allow gay couples to get married. Unfortunately, this proposal faces what must in a democracy count as a serious impediment: as many as two thirds of the population are opposed to it.5 The extreme unpopularity of gay marriage is, no doubt, why, in this election year, Bob Dole is cosponsoring a bill to deny federal recognition to gay marriages, even though no state has allowed any to take place, and even though marriage has always been largely a matter of state law, and Mr. Dole is from the party of state’s rights. It is equally clear that this is why Mr. Clinton, whose first major policy fiasco in the White House was his attempt to allow gay men and women to serve openly in the military, long ago sought to preempt gay marriage as an election issue, declaring himself opposed to it in 1992, and now has declared himself willing to sign the bill Dole has cosponsored. It follows—especially in a democracy—that those who wish to see gay marriages legally recognized must offer arguments against this opposition; and such arguments can proceed in two ways.

One strategy begins from first principles. It would examine why state recognition of heterosexual marriage is a wise and just policy, and show that extending it to homosexuals would be a just and wise continuation of that policy, meeting some (or all) of the same ends—and perhaps some additional ones. Another strategy would be to show that the recognition of gay marriage flows from principles embodied in mainstream American political practice, principles that are important to most of us; and that anyone who genuinely supports those principles must, in good conscience, accept that extension.

The first strategy faces an obvious difficulty: from what first principles should we start? In a modern pluralist society such as ours, there’s likely to be disagreement about such matters. If we are to persuade a plurality of our fellow citizens—as Andrew Sullivan aims to do in his elegant Virtually Normal—we are therefore likely to have to make the argument (as he does) in several ways.

Mr. Sullivan’s argument for gay marriage is part of a wider defense of what he calls “the politics of homosexuality.” His aim, in his short book, is to explore how “we as a society” should “deal with the small minority of us which is homosexual.” His answer is clear enough. State action in relation to homosexuals, Mr. Sullivan thinks, should be governed by a simple principle: “that all public (as opposed to private) discrimination against homosexuals be ended and that every right and responsibility that heterosexuals enjoy as public citizens be extended to those who grow and find themselves emotionally different. And that is all.”

Mr. Sullivan’s approach is to examine critically four current positions in the politics of homosexuality, and, in so doing, to develop the case for his own. As I say, any politics that stands a chance of getting the support of an American majority must address the claims of more than one ideology, more than one group of principles. Mr. Sullivan believes that the four positions he addresses—he calls them “prohibitionist,” “liberationist,” “conservative,” and “liberal”—represent “the most prominent views at war in our society, the four essential choices we are being asked to make.” If he can show that the people who are opposed to full civic equality for homosexuals have beliefs that are inconsistent with the founding ideas of each of these basic positions, they can be asked to accept his proposal not for his reasons but for theirs.

Prohibitionism—in the form that Mr. Sullivan addresses it—is, essentially, the official position of his own Roman Catholic Church. It holds that homosexuality is a “crime against nature,” because we are all naturally heterosexual and the “heterosexual union and its social affirmation” are “at the core of the possibility of civilization.” The politics that follows is one of curing or punishing homosexuals, and deterring others who might “stray into the homosexual milieu.”

Mr. Sullivan is keen to insist that this is not necessarily a bigoted view, though he recognizes that some who profess it are merely using it “to prettify a prejudice.” Indeed, he does not insist that accepting the Bible’s few explicit pronouncements on sex between men (there are no clear Biblical references to sex between women) is consistent with regarding sex between gay men as permissible.6 But that is because the debate within his Church about these matters is not fundamentally based on scripture. Rather it is rooted in the natural-law philosophy of Saint Thomas Aquinas.

Sex, in Aquinas’s view, is fundamentally for procreation; homosexual acts (along with masturbation and non-procreative heterosexual intercourse) are therefore “unnatural.” Engaging in sex for any other purpose than procreation is wrong because there is only one proper end of sexual activity: making babies. Catholic teaching on homosexuality has advanced beyond Saint Thomas’s. Since 1975, the Church has held that some people are naturally homosexual, so that they have, in their individual natures, homosexual desires. But homosexual acts continue to be sinful. Mr. Sullivan draws attention to the core paradox here: “In other words, something in nature always and everywhere violated a vital part of the nature of human beings; something essentially blameless was always and everywhere blameworthy if acted upon.”

Mr. Sullivan’s argument with this position is elegant and persuasive; but one wonders how central it can be to contemporary American political debate. After all, as he points out in closing, the natural-law argument should lead prohibitionists to argue for heterosexual sodomy laws and legal proscriptions against masturbation. They should also be opposed to the marriage of post-menopausal women and all others who know they are infertile. A prohibitionist who does not want to do all these things is treating homosexuality—which he says he opposes as non-procreative sex—differently from other forms of non-procreative sex. He does not have a consistent principled position. He is, in short, “prettifying a prejudice.”

Mr. Sullivan has much to say about the militant homosexuals he calls “liberationists.” For them, he writes, “homosexuality as a defining condition does not properly exist because it is a construct of human thought,…generated in human consciousness by the powerful to control and define the powerless.” With this analysis goes a prescription. “For the liberationists, the full end of human fruition is to be free of all social constructs, to be liberated from the condition of homosexuality into a fully chosen form of identity.”

The source of the idea of liberationism, Mr. Sullivan claims, was the late Michel Foucault. “In many ways,” he tells us, Foucault “is to liberationism what Aquinas is to prohibitionism.” In my judgment, however, Mr. Sullivan is a far less reliable interpreter of Foucault than he is of Aquinas. Fortunately for our purposes this does not matter much, since the politics of liberationism he attacks has little connection with his misreadings of Foucault.

Mr. Sullivan admits as much himself. In discussing “outing” as an example of the politics of liberationism, he allows that “to be sure, there was no direct link between this tactic and the philosophical structure I have just been describing…. It is doubtful whether many recent gay activists have ever heard of Foucault, let alone read him. But indirectly, ‘outing’ follows the logic of liberationist [i.e., Foucauldean] politics.” This sort of argument gives polemic a bad name. How can someone who asserts that homosexuality “does not properly exist,” as Foucault is alleged to have done, be the intellectual ancestor of a practice that presupposes that “homosexual” is what the outed person “really” is; especially when those who created the practice were largely unaware of Foucault (and would have been hostile, had they known of him, to his claim that the identity they were celebrating was itself merely another form of prison)?

  1. 4

    Boswell’s Life of Johnson, Volume 2, p. 165, 31 March 1772, edited by G.B. Hill; revised by L.F. Powell (Clarendon Press/Oxford University Press, 1964).

  2. 5

    The figure of 63 percent is cited by Joan Beck in the Chicago Tribune, March 10, 1996, p. 21.

  3. 6

    Bruce Bawer does so argue in an eloquent talk addressed to Christians in his Beyond Queer: Challenging Gay Left Orthodoxy (Free Press, 1996), pp. 240-242. The situation for Orthodox Jews is different, of course, as a very moving essay on “Gayness and God” by a pseudonymous Rabbi Levado in the same book reveals.

    Leviticus, chapter 20, proscribes a man’s lying “with mankind, as he lieth with a woman” as an “abomination” (using here, as many modern scholars have pointed out, a term that applies to ritual impurities). So someone who argues from this basis ought, in consistency, to think that other forms of ritual impurity—”mixing different fabrics in the same item of clothing,” for example—should be legally proscribed, too. Since this passage bears so much weight in anti-homosexual polemic, it is perhaps worth adding that Mr. Sullivan is not quite right, when he says, after citing this passage: “It doesn’t come clearer than that” (p. 27). Nothing in Biblical exegesis is a simple matter of reading a single sentence. After all, this might be thought to proscribe only penetrative sex—isn’t that how men lie with women?—and thus to permit sexual acts not elsewhere proscribed. For Christians there is the further question whether Jewish ritual law governs them at all, given the New Testament discussions of the relationship between the Old and the New Covenants.

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