This is the second in my series of marriage posts. My first draft, which was a failure, tried to trace the history of marriage, something that’s much better done by better informed people. What I realized from that valiant, although pointless and time-wasting effort, is that what I’m really interested in is a religion’s interest in marriage, a state’s interest in marriage, and the intersection between those two in America. This post may ultimately not end up being any more useful or interesting than my abandoned effort, but it still accurately represents some of the things I believe we need to think about before signing off on gay marriage.
Before I dive into the substance of my post, let me say here what I always say in connection with these gay marriage posts. I think gay marriage represents a sea change in human relationships. Since the dawn of time, in all cultures, marriage has involved men and women, and that’s true whether we’re talking polygamy or monogamy. Even in Greece, a culture people like to point to as one that encouraged homosexual relationships, marriage itself was still strictly a male/female event. This traditional approach to marriage reflects basic biology, something I explored more here, in my post about the procreative component of marriage.
In other words, what’s being proposed now is something that runs counter to all of human history — and a facet of human history deeply rooted in human biology. That’s not in and of itself a good reason to issue a categorical “no” to gay marriage. It is, however, a very good reason not to rush into the subject and definitely not to let judges, who are one of the weakest links analytically, intellectually and emotionally in modern society, to make the decision for us. This is a topic that requires debate and thoughtful analysis, and I’m doing my bit here, at my blog. So, back to the post:
Religion and marriage:
As far as I know — and please correct me if I’m wrong — all of the world’s major religions incorporate marriage as a component of faith. The Catholic Church defines marriage as one of the sacraments. For the uninitiated (and I count myself among that crowd), Wikipedia has what seems to me to be a nice summary of what the sacraments are:
According to the Catechism, Jesus instituted seven sacraments and entrusted them to the Church. These are Baptism, Confirmation, the Eucharist, Penance, Anointing of the Sick, Holy Orders and Holy Matrimony. Sacraments are visible rituals which Catholics see as providing God’s grace to all those who receive them with the proper mindset or disposition (ex opere operato).
In other words, marriage, if it is at all possible to achieve that state, is an integral part of the Catholic faith. Deliberately shunning marriage is, I presume, tantamount, to turning your back on God’s grace. Although I’m shaky on Protestant doctrine when it comes to marriages, I have the sense that, while Protestantism abandoned the terminology of the “sacraments,” it kept the concept, with marriage being an integral expression of religious faith.
Jews too see marriage as an essential act of faith, putting into effect both (1) God’s direct command that his followers are fruitful and multiply, and (2) God’s intention, expressed when he created Eve as Adam’s companion, that men and women form lasting companionable partnerships.
And as we all know Islam also strongly advocates the marital relationship.
A little research reveals that in Hinduism, too, marriage is a sacred religious covenant. About.com has a brief summary, which I quote from here at length, since it leads to my next point about religion and marriage:
In Hinduism, man and woman represent the two halves of the divine body. There is no question of superiority or inferiority between them. However, it is a scientific fact that the emotional side is more developed in women. This does not mean that intellectually, women are inferior. Hindu history is witness to the super-women, like Gargi, Maitreyi and Sulabha, whose faculty of reasoning was far superior to that of ordinary mortals. But owing to organic differences in their physical and emotional constitutions, women are temperamentally more emotional than men.
The idea behind the institution of marriage in Hinduism is to foster, not self-interest, but love for the entire family. Practice of self-restraint is the ideal of marriage in Hinduism. It is the love and duty cultivated for the entire family that prevents the break-ups.
The present-day Hindu husbands fail to recognize the sacrifices and lofty ideals of Hindu wives, and thus compel them to follow the worst of the West. During the nuptial ceremony in a Vedic marriage, both the bride and the bridegroom take oath for the practice of self-restraint, to work together for the welfare of the family and to help each other to attain spiritual peace. This lofty ideal of sanctity is a great gift of Hinduism to the world at large.
As you probably noticed, the above description has all sorts of pragmatic reasons for marriage: self-restraint, companionship, family and the complimentary nature of male and female emotional lives. Judaism, too, has a focus on marriage that can be seen as very pragmatic, and untied to things spiritual: children and companionship. Indeed, I’m willing to bet that, if you go back in time and study the origin of marriage in each of the world’s religion, you’ll see that it’s tied to some practical goal.
At this point, of course, advocates for changing marriage start to argue that since marriage is a pragmatic means to an end even in the context of religion, religions should be changed to accommodate gay marriage, which is also a means to an end of companionship, family and (through adoption or insemination), children. This argument is plain wrong, though.
Regardless of the reasons the religions advance for marriage, the fact remains that heterosexual marriage is an integral part of each religion, and is seen as a necessary step for any given religion’s practitioners to take to achieve religious fulfillment or commitment. A civil society cannot change these fundamental doctrinal facts, no matter how much it is able to rationalize the reasons for the nexus between marriage and faith. Any given religion’s control over the marriage of its practitioners is sacrosanct and untouchable no matter how much you try to rationalize it away.
The state and marriage:
The modern state encourages marriage. Why? Originally, states were inextricably intertwined with religion. Starting with Constantine, where the ruler went, so went the people. If religion demanded marriage, well then, dammit, so would the religious state. That’s not the case anymore, especially in America. Thanks to the First Amendment, the American government cannot mandate that everyone get married because “X” religion says so, nor can it demand that all who want to get married have to do so under the aegis of “X” religion.
Although there can be no religious element to marriage in American, the state is nevertheless heavily vested in the union of men and women. This involvement is completely separate from religious unions, although, confusingly, they share the same name: marriage. The deal in America is that, if you want to have a solely religious marriage, that’s fine — only you won’t get any of the benefits the state extends to people who simultaneously enter in a civil marriage contract. What are those benefits? Here’s a partial list proponents of gay marriage assembled (from an alleged total of 1400 benefits), along with some comments from me, in blue:
- joint parenting; [This is a biological one: his sperm, her egg. However, it can be circumvented by having the non-biological parent adopt the child, something that has happened in step-families for centuries]
- joint adoption; [My understand of adoption is that both parents have to be vetted. I assume there's an extra procedural hurdle to issue the adoption papers for John Smith and John Doe, as opposed to Mrs. and Mr. John and Jane Doe. However, it certainly hasn't stopped numerous gay couples I know from adopting. Adoption is always a procedural pain in the neck from the stories I've heard.]
- joint foster care, custody, and visitation (including non-biological parents); [See above.]
- status as next-of-kin for hospital visits and medical decisions where one partner is too ill to be competent; [This can be arranged contractually.]
- joint insurance policies for home, auto and health; [This can be arranged contractually.]
- dissolution and divorce protections such as community property and child support; [This can be arranged contractually.]
- immigration and residency for partners from other countries; [I'll agree that this is definitely a difference between people married, versus people merely committed to each other. Marriage would seem to add some credibility to the claim that the non-resident is involved in a true relationship with the American citizen, rather than a sham for immigration purposes. Given that both our immigration policies and are marital policies are increasingly sham-like themselves, it's hard to believe that this is an insurmountable hurdle.]
- inheritance automatically in the absence of a will; [Write a will. Most married people I know have written wills anyway, because the "one size fits all" of an intestacy statute is a disaster waiting to happen.]
- joint leases with automatic renewal rights in the event one partner dies or leaves the house or apartment; [In San Francisco, landlord tenant laws are such that this is not a valid reason to claim marriage as a benefit over non-marriage. Once you're in an apartment, you've got squatters rights, which is one of the reasons I refused to yield to my husband's importuning that we buy residential properties in SF to rent. I don't know the law in places that don't protect tenants as much. Again, though, change the contract.]
- inheritance of jointly-owned real and personal property through the right of survivorship (which avoids the time and expense and taxes in probate); [Properties can be held in joint tenancy by non-married people. This is again a contractual matter. You can set up trusts, re-title property, etc.]
- benefits such as annuities, pension plans, Social Security, and Medicare; [I have no idea about this, but suspect that it's true that federal government benefits cannot be amended by contract.]
- spousal exemptions to property tax increases upon the death of one partner who is a co-owner of the home; [I don't know about this -- taxes are a blank slate for me -- but I assume that there are again contractual or commercial steps one can take to circumvent this problem. I freely concede I may be wrong here.]
- veterans’ discounts on medical care, education, and home loans; joint filing of tax returns; [Joint filing of tax returns is no privilege, it's a penalty. I don't know about veteran's benefits but, given that the military won't recognize homosexual relationships, I'm sure it's true.]
- joint filing of customs claims when traveling; [BFD.]
- wrongful death benefits for a surviving partner and children; [If you've adopted the children, I don't believe that they can be deprived of wrongful death benefits. I don't know about the surviving partner, although I assume that, again, most business and insurance companies have set this up so that a person can be named contractually.]
- bereavement or sick leave to care for a partner or child; [Again, adoption solves the child problem; and I don't know about the partner problem.]
- decision-making power with respect to whether a deceased partner will be cremated or not and where to bury him or her; [This can be resolved contractually, if the deceased is an adult.]
- crime victims’ recovery benefits; [Don't know.]
- loss of consortium tort benefits; [Probably depends on the state in which the consortium tort benefits are claimed.]
- domestic violence protection orders; [Depends on the state, I guess. Also, anyone who is the victim if violence can, in theory, get a protective order. The problem is that, whether you're partnered or not, they don't do much good. Also, if you're not married, you theoretically have an easier time getting out of the domestic violence situation than someone who is married and whose life, as a matter of law, is deeply entwined with that of the violent partner. In other words, this sounds redundant.]
- judicial protections and evidentiary immunity [Evidentiary immunity -- no doubt about it. There is no law saying a gay partner cannot be forced to testify. I don't know about other judicial protections.]
Clearly, a lot of the automatic benefits — and burdens — bestowed on married couples require some extra work for gay people. And there are definitely some benefits that won’t go to gay people at all. None of these details, though, change the fundamental question: Is it in the state’s interest to make all these benefits automatically available to gay people? States that have legalized civil unions have said yes, taking away the complaint that the local state government is depriving gays of the same ease of access to government benefits that is granted to straight married couples. Presumably, the federal government could do the same thing without actually calling it marriage.
But I’ve digressed — again. Let me restate my question: Why the heck does a civil state care about marriage to the point where it extends all these benefits? There are lots of answers. I’ll start with a few, and leave you to fill in the rest.
One of the primary reasons is convenience, both for the married people and for the state. Since our culture’s default setting is for heterosexuals to pair up, and since our Judeo-Christian heritage has seen to it that this pairing up falls under the rubric of marriage, it’s infinitely easier if the state treats these pairs as a single entity. Half the tax returns (even if people are penalized for filing them), half the number of adoption forms, half the this and half the that. This also allows for huge numbers of presumptions about parenting — who has genetic rights in the children, who can be relied upon to care for the children, who would want his or her estate to go to the children, etc. The efficiency of treating permanently joined couples as one, and of making certain presumptions about them as a matter of law, is overwhelming. This benefit — to the state and to married people — would not change if marriage were extended to gay couples.
Intangible societal benefits also flow from marriage, and this is one of those things where the state’s benefit is our benefit too. As I’ve mentioned in my first post about gay marriage, marriage stabilizes men by focusing their testosterone on the protection of their wives and children and, by extension, on the protection of a stable, coherent society that will provide the maximum benefit to those same wives and children. Marriage is also beneficial to women since, biologically, they spend a lot of down time being pregnant and caring for children. A stable marriage ensures that they won’t have to be dependent on themselves, strangers or the state for these basic needs.
Stable married couples also tend to demand stable communities. To begin with, they want safe, attractive communities for their children. They also tend to be much, much more sociable. The moment I had children, I realized I’d joined the largest club in the world. It was no longer a matter of sporting the right clothes, or walking a dog in the right neighborhood, or having the right hobby in order to find people to talk to. Everyone who has ever had or wanted a child was an instant acquaintance. This creates intangible community bonds that are invisible to those who don’t have children. These bonds, again, encourage a thriving society where everyone, for his or her own benefit, works for the common good.
Frankly, gays with children can join this club too, and would have these interests too, so the state should be encouraging gays to have children. The question, of course, is whether marriage is a necessary prerequisite to encourage gays to have children. I don’t have the answer to that.
Do the above factors include “encouraging traditional values?” I don’t know. If by “traditional values” we mean having children and raising them to be useful members of society, defending our country, keeping our communities safe and thriving, etc., the factors I’ve set out above are definitely policies aimed at preserving and encouraging traditional values, whether or not civil marriage is extended to gays. If we think “encouraging traditional values” must include as one of those values “heterosexual marriage,” we come to a standstill. In that case, the state cannot simultaneously preserve heterosexual marriage while opening marriage to gays.
At the civil side, it all seems to boil down to what one believes should be the state’s ultimate goals. If one believes that heterosexual marriage is an ultimate goal, or if one believes that the nature of the gay lifestyle is such that, even extending marriage to gays would not bring them into the “stable society” fold, the debate is over. There is no societal virtue in having the state recognize gay marriage. If one believes, however, that gay marriage would increase the state’s ability to impose on its citizens all of the traditional virtues (but for heterosexual marriage, of course), while simultaneously increasing convenience for both the state and its citizens, gay marriage becomes a viable option.
Religious freedom in America versus gay marriage
Again, though, that’s not the end of the analysis. We continue to have problems because of America’s unique nature, which has seen the law develop so that the courts and the government have the power to prevent private individuals and organizations from depriving fellow citizens of rights. Even if we agree that the state will not be compromised by allowing gay marriage, we still run the risk of creating a Constitutional Frankstein’s monster.
As we’ve seen already from legions of newspaper stories, both at home and abroad, gays are routinely, and successfully, suing religious individuals and organizations (or bringing administrative proceedings) in an effort to force them to fall in line with state norms about homosexuality, even if those norms are antithetical to religious norms. Individuals and organizations that don’t want to extend benefits to same sex partners, or who don’t want to arrange adoptions for gay couples, or who don’t want to use their venues to host same sex marriages, or whatever else is being asked of them, are being challenged through the courts and through government bureaucracies. Their religious convictions are being attacked through state vehicles.
These bureaucratic and judicial attacks would seem to run directly counter to the First Amendment’s first clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The government is prohibiting the free exercise of someone’s religion if it forces that person to lose his livelihood or his home or his business if he won’t engage in acts antithetical to what are still fairly mainstream religious beliefs.
In other words, no matter how one tries, as I did, to make a pro and con list of the religious and civil aspects of marriage, one still runs into a single, possibly insurmountable problem: For the state, in the form of the federal government, to impose gay marriage throughout American means that Congress will, by definition, have enacted a law prohibiting the free exercise of someone’s religion. That violates the First Amendment. The only way not to violate it is to enact a Constitutional amendment, something that might state “Congress may pass a law allowing gay marriage and that will be the exception to the prohibition against Congress passing a law prohibiting the free exercise of religion.” Absent that change, which is an enormous undertaking, I actually don’t see how the feds can allow gay marriage without violating the existing Constitution.
Of course, given the increasing activism of the Courts and government bureaucracies, and their routine willingness to subordinate religious freedom to the intangible goal of equality of outcome, my question, while academically interesting is probably moot. I can assure you that, in an Obama Supreme Court, the justices will easily find some intangible right to gay marriage that entirely trumps the First Amendment.
I feel I should state some sort of conclusion here, but I don’t rightly now what my conclusion is. I can summarize my argument, though: Most religions do not and cannot be forced by the state to recognize gay marriage. The state’s more pragamatic interests in marriage probably would not be too greatly compromised by gay marriage. The state’s vision of society might or might not be comprised by gay marriage, depending on what that vision is. But all of that may be moot because it appears that, if Congress recognizes gay marriage, which is the ultimate gay demand, it will create a fundamental clash with the First Amendment that will be resolved only by the Supreme Court. And as the tight victory for the Second Amendment reveals, even the currently composed Supreme Court could go either way. An Obama Supreme Court will toss religious freedom out the window.
As is always the case, the way this should be resolved is through a Constitutional amendment (which is how the abortion matter should also be addressed), but the activists will never go that route when they think they have the Courts in their pockets.
UPDATE: Here are to further points. First, this is an example of what happens in a society when men don’t get the calming influence of marriage and the societal-beneficial investment into a family.
Second, I wanted to point out something I hadn’t made clear in my post, namely the fact that, in America, freedom of worship is not limited to doctrinal practices. That is, it’s not simply that the government can’t make a law prohibiting church services or banning the reading of the Torah. In case after case (many involving Jehovah’s witnesses in the 30s through 50s), the Court’s have held that people cannot be forced to engage in day-to-day life practices antithetical to their beliefs. The most obvious example is the fact that the government has routinely issued conscientious objector status to those who can show that they are true adherents of religions that genuinely have pacificism as a core part of the belief system (such as Quakers).
UPDATE II: It’s people like this gentleman (and I’m being generous saying, not only “gentleman” but also “people”), who are common fixtures at gay pride parades, who may give some Americans the impression that gays are agitating for marriage for reasons other than merging with societal norms. That is, perhaps they’re just making a political point: We want it, not because it leads us to our ultimate goals of societal normalcy, but because we currently don’t have it.
UPDATE III: Scott’s comment and an email from DQ both tell me I need to clarify something. Here goes:
The distinction I have in mind when I make my First Amendment argument is predicated on the differences between “mere” cultural practices and core religious doctrine. Both Scott and DQ are correct that there is nothing to stop the state from issuing civil marriage licenses. No one would contend that, if it did so, though, that law would force religious authorities — rabbis, priests, imams, etc. — to perform gay marriages. I know that the state would not get involved in church affairs in that way.
The people I’m thinking about are the ordinary citizens whose lives or livelihoods intersect with the marriage business. Examples of this would be the Massachusetts Catholic charity that was put out of business because it felt doctrinally barred from giving children to gay couples. Another example, which happened in England (but could happen here under new laws) is the owner of a fancy reception hall being fined and put out of business because he won’t open his home to gay weddings.
Incidentally, the ban against polygamy (which DQ mentioned in his email to me as an example of the US messing with religious marital principles) was grossly unconstitutional if one believes that, as of the 1860s, Mormonism was, in fact, a true religion. The only way the US gov got away with it was (1) because Mormonism was not an established religion and (2) Utah wanted desperately to move from being a territory to becoming a state. Islamic polygamy, which is banned under anti-polygamy laws, actually has the same problem, although I don’t know Islam enough to know whether one can argue that polygamy is a cultural practice, not a doctrine. If the former, it can be banned. If the latter, it’s questionable whether it can be.
With the major faiths – Christianity, Judaism, Hinduism, Islam, etc. – we take it as given that they’re true religions and not merely convenient fictions for certain behaviors (which is the negative view Americans of the 1860s took of Mormonism). Even when we separate core doctrines, central to the religion itself, from practices rising up around the religion, we see that marriage is a central practice to each religion. Given that marriage is not merely a ritual or habit but is, instead, vital to the religion, the US theoretically should not be able to force religious citizens (as opposed to their priests, rabbis and imams) to participate in gay marriage ceremonies – or, worse, to be punished for refusing to participate.
So, again in theory, not only does not the rabbi not have to perform the ceremony, the Jewish caterer should not be sued for hundreds of thousands of dollars for refusing to provide the food. It’s the latter person who concerns me at a Constitutional level (the caterer), not the former (the rabbi), whom I know the government will leave alone.