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” verses 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.