Mollie and Andrea's Wedding

Last November, after my daughter Mollie informed me that she and Andrea had gotten engaged, I was moved to post an entry on this site ("Marriage: Scripture v. Morality (November 14, 2006). "Mollie and Andrea," I wrote "are deeply committed to one another. They want to spend their lives together. Watching them over the past few years, it is easy to see why. They complement each other, take care of one another, respect each other, and love one another. They want to have children, for all the right reasons. In my experience, they are no different in their love, commitment, and aspirations than any of the other young couples whose weddings I have attended over the past half-century. But Mollie and Andrea cannot marry."

Although conceding that the definition of marriage as limited to "a man and a woman" reflects traditional religious belief and customary practice, I reasoned that religious belief is never sufficient justification for a law in the United States and that one of our greatest achievements as a nation has been our willingness constantly to reexamine and discard discriminatory and unwise customs. I concluded that is wrong "for our government to discriminate against Mollie and Andrea in this manner."

On Sunday, Mollie and Andrea were married in Chicago. It was, in many respects, a traditional wedding. It was performed by a minister. It was at a beautiful venue -- the Newberry Library. There were many guests, from a wide variety of backgrounds, life experiences, and political and religious perspectives. There were touching and clever toasts, much singing, music, and dancing, and an abundance of laughter, tears, and joy. At the end of the wedding ceremony, in the only acknowledgment of the governing law, the minister, striking a perfect note of irony and levity, said that, "by the power not quite yet vested in me by the State of Illinois, . . ." The brides then kissed.

Since November, I have had many conversations with friends, colleagues, students, and even strangers about the definition of marriage. I very much want to understand why some people so strongly oppose the marriage of two people who love one another and want to spend their lives together, merely because they happen to be of the same sex.

Putting aside the narrowly religious arguments, which even most religious people recognize are an inappropriate basis for law in our nation, what it really comes down to is this: Some people fear that for our government legally to recognize Mollie and Andrea's bond to one another would undermine the integrity of marriage as an institution.

What is this all about? Suppose a man wants to marry his cat. Well, why not? The answer, of course, is that marriage is between two people. To allow a man to marry his cat would be, well, absurd. It would make a mockery of marriage. The next thing you know, some woman will want to marry a tree.

Most of us, I'm sure, would agree that our government should not give legal status to a man's "marriage" to his cat or a woman's "marriage" to a tree. That would not be "marriage," as we know it. If we were to allow such "marriages," we would make the very idea of marriage ridiculous.

Is same-sex marriage any different? To those who oppose marriage between people of the same sex, the concept of Mollie marrying Andrea seems as foolish and unnatural (and therefore as threatening to the institution of marriage) as a man marrying his cat or a woman marrying a tree.

I say this not to mock those who oppose same-sex marriage. To the contrary, I say it because I have no doubt of their sincerity or the depth of their convictions. But their reasoning, both moral and logical, is flawed. As one of my law professors taught me many years ago, law (and we are talking here about law) involves choosing wisely among competing analogies.

After the Civil War, we declared that discrimination against African-Americans is wrong. But for a century thereafter we thought discrimination against women a completely different kettle of fish. Discrimination against women was "natural." It was more like discrimination against, say, young people. It wasn't until forty years ago that we began to understand that discrimination against women is more like discrimination against African-Americans than we previously had thought, and we shifted the controlling analogy.

So, is Mollie marrying Andrea more like Mark marrying Alice or John marrying his cat? The very asking of this question might be taken as insulting (indeed, very insulting) to Mollie and Andrea. That is precisely the point.

Changing the controlling analogy entails risk. Recognizing that discrimination against women is "like" discrimination against African-Americans opens the door to new and sometimes disturbing questions. What about discrimination against the disabled? Against the aged? Against gays and lesbians?

Similarly, a decision to allow Mollie and Andrea to legally marry might raise unsettling questions about polygamy and even about the cat and the tree. But such questions are inevitable and healthy in a robust, ever-questioning, ever-evolving society. They are a fundamental and cherished part of our American history and culture. If we did not ask such questions, we would still burn witches, buy slaves, and deny women the vote. In the end, we must rely upon our deepest moral intuitions, our commitment to individual dignity, our belief that all persons "are created equal," and our common sense to draw the "right" lines for our generation.

Finally, for those who might be curious, let me say just a word about the wedding itself. Although I cannot be objective about this, I'm reasonably confident that those in attendance found this a particularly moving celebration. What made it so moving, I think, was that Mollie and Andrea decided to marry not to gain the many legal benefits of marriage, which they are denied, and not to make a political statement, for they are not particularly political. What made it so moving was that Mollie and Andrea decided to marry for no reason other than their love for one another, their desire to commit themselves to one another, and their wish to make that commitment in the presence of their friends and loved ones. It was romantic, it was inspiring, and it was perfectly right, in every way.

Here is the original post from last November:

Marriage: Scripture vs. Morality

Last Friday, my younger daughter got engaged. She surprised her partner with a proposal, a ring, and a string quartet playing "their" song. As my wife noted, with two daughters we never thought we'd have a daughter-in-law.

Mollie has known she is gay for a long time. When she was still a student in a private high school, she led a controversial effort to create a gay/lesbian/bisexual student support group. We thought this particularly admirable because she was doing it on behalf of other students. Little did we know.

Now, ten years later, Mollie has found a life-partner. Mollie and Andrea are deeply committed to one another. They want to spend their lives together. Watching them over the past few years, it is easy to see why. They complement each other, take care of one another, respect each other, and love one another. They want to have children, for all the right reasons. In my experience, they are no different in their love, commitment, and aspirations than any of the other young couples whose weddings I have attended over the past half-century.

But Mollie and Andrea cannot marry. It is time for the United States to to move into the twenty-first century. In plain truth, it is immoral for the government to discriminate against Mollie and Andrea in this manner.

"Marriage," we are told, "is between a man and a woman." It is simply a matter of definition. It is a matter of Scripture. It is what God commands. Indeed, there could be no other reason for such a rule. Apart from religious precept, why would we have such a restriction?

There are, of course, rational reasons for creating the institution of marriage, and it is easy to see why those reasons might focus on relations between a man and a woman. Most obviously, marriage was designed to enable us to raise children in a stable environment. By binding the woman to the man, marriage assured the man that the children he raised were his own. Without that assurance, men would have little reason to take responsibility for children. Because that problem could never arise between two women or two men, marriage between them was unnecessary.

Marriage also played an important role in legitimating sex. The early Christians believed that absolute celibacy was the only proper way to live. (Because the "Kingdom of God" was imminent, the early Christians saw reproduction as irrelevant.) Marriage was justified only as a means to prevent fornication (sex without marriage). As St. Paul put the point, "It is good for a man not to touch a woman. Nevertheless, to avoid fornication, let every man have his own wife, and let every woman have her own husband." If they could not accept the higher discipline of celibacy, then "let them marry, for it is better to marry than to burn."

The institution of marriage has embodied many restrictions over the years since St. Paul. Marriage has been prohibited, for example, to persons of different religions and different races. Like the ban on same-sex marriage, those prohibitions were justified by appeals to tradition, natural law, and Scripture. In a representative statement, a judge explained miscegenation laws: "Almighty God created the races, white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

Same-sex marriage is particularly troubling to some people on religious grounds because it so openly acknowledges the legitimacy of sodomy. According to traditional Christian doctrine, God destroyed Sodom because its inhabitants engaged in same-sex sex. (This is, by the way, a questionable interpretation of the story.) Importantly, God destroyed not only those who actually engaged in sodomy, but all the inhabitants of the city. The lesson was clear: To avoid damnation, one must not only refrain from same-sex sex, but also prevent others from engaging in it. For this reason, sodomy came to be regarded as a sin so "detestable and abominable" that it is "amongst Christians not to be named."

I have no problem with individuals leading their lives according to their own religious beliefs. If one person needs to wear a yarmulke during the Star Spangled Banner, so be it. If another disdains pork, good for her. If a third has to use peyote as part of his religious observance, fine. If a fourth believes her religion forbids her to marry a woman, I support her right not to do so. But why should our government officially impose one group's religious faith on others. Should the law require all people to wear a yarmulke, refrain from eating pork, and not marry a person of the same sex? In a highly diverse society that celebrates both its homogeneity and the separation of church and state, government imposition of one faith's religious practice on others should be unthinkable.

At least with respect to same-sex marriage, our society is about to change. A third of Americans now favor allowing same-sex marriage and more than half now support same-sex civil commitment. Our nation's greatest achievement has been its ability to recognize and overcome deeply entrenched racial, religious, gender, and ethnic discrimination. We will achieve this as well in the realm of sexual orientation. But some of us grow impatient. I'd like to go to Mollie's wedding.