Wednesday, January 22, 2014

What is a marriage? Who has the right to validate a marriage?

This is the sixth installment in an ongoing debate/dialogue on same-sex marriage in America. All installments in this debate are indexed in order and can be linked from here. The letter below is a partial rebuttal to Steve Johnson's letter in the previous installment.

Dear Steve:

In my last letter to you I said I was disappointed because, in my eyes, you had hardly bothered to respond to my actual points. And I went after you with my historical hammer. But now I feel you might accuse me of the same selfishness: not bothering to respond to your real points, going off on my own rant. So I want to get this second letter off to you quickly. Because I'm well aware there were arguments in your last rebuttal I needed to address but hadn't.

What I didn't bother to address was your stress on “third-party verification”. You imply in your letter that this is crucial to understanding where you're coming from in this debate. You also point out that our legal system wouldn’t function without such verification. That you keep coming back to this point of licenses or certificates shows how important these questions are to you. In fact (though I think of the term third-party verification as something mainly used in telephone transactions) I have no argument with you as regards the necessity of like kinds of verification in a culture as complex as ours. An instance of what you mean, I suppose, would be the phenomenon of witness signatures on a marriage license. They verify they know the people involved and verify they were present for a civil wedding. Yes?

But even though we may agree on the necessity of such kinds of verification, our differences here are great. I've tried to make sense of what you're arguing, but, honestly, in places your argument still isn't all that clear to me. I will do my best to seize on your main point so that I may then show how it relates to my own way of thinking.

I may be able to get at what divides us by considering your remark about how people "mix up" the "two aspects" of marriage. "When I think about the issue of a marriage," you write, "I think that sometimes people confuse the value of the marriage ceremony with the value of the legal framework." I think I understand this sentence. I believe you would say, using this language, that I’m one of the people who stress the “ceremony”, whereas you would stress the “legal contract” (for which "third party verification" is necessary). Am I right on this? Or perhaps you would say that the "ceremony" is one thing, up to each religion or family to decide, whereas the "legal contract" is what is decisive, as it is indifferent to individual preferences (religion, sexual orientation, etc.). Yes?

The problem (and this will help you recognize our differences) is that I wouldn't use this kind of language myself--this language of "ceremony" vs. "contract". Once you understand why I wouldn't use this language, you'll better understand where I've been coming from since our debate began.

For me a ceremony is merely the culture’s way to mark that a valid marriage has begun. We can see this by looking at actual ceremonies. In almost every culture a marriage ceremony is a matter of showing the couple to the community for all to acknowledge. The success of the ritual, in the presence of the whole community, proves that all agree: “These two are now married.” The ceremony, then, is not the marriage itself, not even in my mind. The marriage, rather, is that couple’s particular manner of existence within the community henceforth. What does this mean? Perhaps I could say (although for some people the term will lead to confusion) that the marriage is that couple’s social status as it plays out between them and in the community starting from the day of the ceremony. Marriage in my thinking, then, is a particular kind of social status. The status married that a couple acquires involves certain rights and obligations between the spouses, yes, but it also, crucially, involves rights and obligations in terms of the couple’s relationship with the community. The couple and the community recognize each other in terms of the culture’s ideas of marriage. The couple says: "We are married, as you acknowledge, and therefore we claim these rights." The community says: "You are married. We can expect such and such behavior from you." That is how the status is lived, that is the meaning of the married couple, that is the marriage in its existence.

The fact is that I don't think your remark about people mixing up the "ceremony" with the "legal contract" applies to me. Or are you trying to say that in our debate I have been mixing up the "married status" with the "legal contract"?

In my view, all a marriage contract does is set out in writing what the terms of the agreement are. These terms, in America, are very slim indeed, because our society is so fragmented. As for a marriage license, all it does is record the status of the couple as married for legal purposes. Both are important, yes, but I think you will agree: There have been marriages for far longer than there have been agencies or state bureaucracies to license them. Would you want to claim, Steve, that the countless marriages effected over the centuries in Polynesia before the arrival of Europeans and their paperwork were somehow “invalid"? I doubt you would. And so: The marriage is not the licensure or the contract or even the ceremony--it is rather a special status conferred on married couples.

Please keep these facts in mind as you consider my next question: Who, Steve, has the right to confer this special status, who is it that must acknowledge that a couple is married? The answer is simple: It is the whole community that confers this status. Not 58% of the community, not state officials, no--the community as a whole confers it. Do you disagree with me here? When our parents married, back in the day, they married with the acknowledgment of their whole communities. No one would have come forward and said, "No, you two are not married."

Now where does this bring us? I'll tell you. A functional and truly representative government will only provide a marriage license to couples who are recognized as married by their whole communities. In other words, if most of the neighbors agree it's a valid marriage, but one in three insists it isn't, the government should not get involved in the business of giving a license. We might consider America as one huge community in this respect, it comes to the same thing. To the degree that America is a community, it must be at least near unanimous on what counts as a marriage. I think, for our purposes, 95% is near unanimous. Are we anywhere near that? We are nowhere close, not even in states that have legalized same-sex marriage.

Now you might raise the issue of anti-miscegenation laws in protest. In fact through much of our history it was illegal for blacks and whites to intermarry. So, you will say, what about the transition period, when interracial married couples were not accepted as such by some of their neighbors? Isn't this the same thing? "Are you then arguing, Eric, that state governments were wrong to issue marriage licenses to interracial couples?"

I think you'd have a point here; it is indeed a similar kind of situation. But I don't think it's "the same thing". And I'll tell you why. Because anti-miscegenation laws were not universal; they were not in effect in many of the cultures with which the US had contact; they were certainly not in evidence in the history that learned Americans could consult at any time. America, being a more universally minded nation, was likely soon enough to realize, if only half-consciously, that its laws in this respect were not in accord with its universalizing mission. Such laws, rather, were instead a matter of a local injustice, an instance of America not taking its rightful place in the community of nations. For these reasons, the laws disappeared, and the culture has largely followed suit. A man and a woman don't have to be of the same race to be married. Looking at the history of the world, this is an obvious observation to make.

The issue of same-sex marriage is very different. Because the validity of these marriages is so easily contested, and it is contested on good grounds. Communities throughout history, except for very rare exceptions, have only conferred the status married on heterosexual couples. In my 2012 essay I explained why this was likely the case. But why it is the case is not so important here as simply that it is the case. Since same-sex marriage is virtually non-existent as a human practice, those demanding same-sex marriage as a "right" have virtually no historical precedent on which to claim this right. They have in fact, in America's major religions, which are indeed very central to our culture, scriptural passages and traditions of moral teaching that insist homosexual desires in themselves are wrong and sinful. I personally don't accept the Christian teaching that homosexuality is inherently sinful. I don't find this teaching has such a strong grounding in the New Testament, and don't agree, in any case, that ancient people understood human sexuality well enough to make such strong judgments on sexual orientation. (St. Paul, though he was indeed inspired by the Holy Spirit and his writings most certainly are Holy Scripture, nonetheless was not 100% correct in every aspect of everything he wrote about.) But even so, I am not going to force my fellow Christians, who may disagree with me on this, to conform to my own religious interpretations. And the bare fact is, like it or not, that tens of millions of people in our nation think "same-sex marriage" a contradiction in terms. Tens of millions? Certainly well over a hundred million.

And they have history on their side; they are decidedly not, in fact, weirdos for refusing to recognize these so-called marriages. On the contrary: we may say pretty confidently that heterosexual marriages have accounted for around 99.9999% of marriages globally over the past 5,000 years. If we look specifically at Western cultures (and we are a Western culture) that number jumps to 100%. I know, Steve, you are not influenced by such numbers, you have faith that history is progress. But even so, please keep these numbers in mind as you consider my following assertion, which is, when push comes to shove, quite important to me:

With such a long and universal cultural norm as backup, any American individual has the right to look at a gay couple claiming to be married and say: “Sorry, I disagree. In fact you two are NOT married. Regardless of what the government says on this, you are certainly NOT a married couple.”
Will you disagree with this assertion, Steve? Will you say that American individuals don't have the right to take this stance? I personally think it is the right of a culture or religion to hold to its basic definitions. Especially on an institution as central as marriage. And especially when that culture or religion accounts for half of a nation's population.

But look what is happening now, what is starting to happen all over our country? If I am at work in a hotel or restaurant or bakery, even if I am the owner of said business, and if in talking to customers I refuse to use the word “husband” to refer to one of the so-called spouses in that gay marriage, if I insist on saying “boyfriend” instead, I may very well lose my job or possibly even be subjected to legal action. Perhaps such a refusal is not yet being defined as a “hate crime”, but it will be soon enough. Regardless of your own stance on same-sex marriage, do you think this situation is really just? Citizens unwilling to change their thinking on a fundamental cultural institution, unwilling to agree to a merely novel way thinking which is not even two measly decades old, being accused of a “hate crime”? Do you think this is right, Steve? Are you and other gay marriage supporters so confident you have a monopoly on truth?


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