As the debate over marriage equality continues, two significant questions have consistently reared their heads: First, what is marriage?; and second, who should regulate it?
The liberal-conservative divide on the definition of marriage is quite clear -- liberals generally conceive of marriage as about love and therefore inclusive of same-sex couples, whereas conservatives draw on, historically speaking, a male-breadwinner, child-rearing model of marriage and then do their best to gerrymander same-sex couples out. On this point, conservatives are flat-out wrong.
But the conception put forth by liberals leaves "a way out" for conservatives and anti-queer libertarians: If marriage is only about love, then why should government be involved at all? Because the liberal response to this is not obvious, and liberals are shy to "defend marriage" (given the conservative monopoly on the term), the push for deinstitutionalizing marriage has duped a shocking number of otherwise progressive people into supporting a fundamentally conservative agenda.
What Is Marriage?
Conservatives argue that marriage has two purposes: Solemnizing the love between two people, and providing a stable environment for the production of children. Thus, for example, conservative legal scholar (or very elaborate and committed comedian) Robert George, posits that the definition of "real" marriage is "the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together." Marriage, says George and many other conservatives, is inseparable from raising children. Such conservatives invoke various social science studies which demonstrate better, on average, outcomes for children raised in two-parent households (as compared to single-parent households). These studies are not wrong -- but the way in which they use the data is deceptive. Rather than recognizing that the data they cite reflects all two-parent households, anti-marriage conservatives suggest that the positive outcomes are the result of having two heterosexual parents. Unfortunately for them, the bare assertion of a fact does not make it true. Numerous professional organizations have contradicted these claims. Same-sex couples are just as competent parents as their heterosexual counterparts.
And, because conservatives today rarely deny that same-sex relationships are, with the exception of child-bearing, effectively the same as heterosexual relationships, it is upon the ability to bear children that conservatives rest their argument. Desperate to prove they are not bigots, conservatives argue that they wish to deny marriage to same-sex couples, but not infertile couples because, as George asserts, "Any act of organic bodily union can seal a marriage, whether or not it causes conception."
In other words, according to George, the important part of marriage is a man putting his penis in a vagina. One obvious problem with such an argument is that George's definition of "organic bodily union" can be easily redefined as soon as one steps out of the bigoted and arbitrary theological suppositions that he makes. Moreover, why is the specific sex act so important to conservatives in an institution which, they insist, means so much more? In fact, the Supreme Court, striking down state sodomy bans in Lawrence v. Texas, observed that "it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse."
There is no way to say this without sounding flippant: Conservatives are just wrong on what the definition of marriage is. They are not wrong when they emphasize the significance of marriage in providing stability for a child -- but their focus on specific sex acts as the differentiating principle between opposite-sex and same-sex couples reeks of post hoc rationalization.
By contrast, pro-marriage liberals contend that marriage represents the solemnization of a union between two loving people. For example, on its website, Marriage Equality USA encourages its visitors to:
[T]hink back to the day your spouse asked you to share his or her life. How special your wedding day was! Friends and family gathered around ensuring all was perfect -- and for the most part, it was. However, rice and cake aside, did you have any realistic idea what marriage meant? Did you know the legal rights you, as husband and wife, would gain? Or how your family would be protected?
In other words, marriage is about sharing a life together and celebrating the love one feels for one's partner. This point resonates with many people, because marrying for love is now the norm. As described by the Supreme Court in Griswold v. Connecticut:
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Despite my particular personal disagreements with this definition (to me marriage connotes not only a lasting bond between two people, but a number of other characteristics, including the raising of children -- although, unlike conservatives, I am decidedly unconcerned with any marital sex acts), there is no internal inconsistency with this definition, as there was with the conservative definition. However, some "common sense" conclusions to which many people may arrive (and have arrived), given this definition, are: (1) love is a private matter so government should get out of the business of marriage entirely, and (relatedly) (2) same-sex couples should get civil unions and then simply have "marriage" ceremonies in private. The ideas are not the necessary logical conclusion of the liberal conception of marriage, but they have cropped up as possible implications, and have flourished with limited resources dedicated to combating these misconceptions.
Should the State Regulate Marriage?
The short answer is, simply, "yes." Although it is awkward to be in the same camp as many anti-marriage conservatives in supporting state involvement in marriage at all, it is vital to avoid the drift toward state agnosticism as to marriage.
Some justification for this lies in the significance of marriage as a social -- not simply a legal or interpersonal -- institution. Numerous studies have demonstrated the importance of stability in family relationships for children, for example. Likewise, the stability and support structure of marriage has been found to create better health outcomes.
Both of these are significant in considering social policy because of their significant third party effects. Worse outcomes for children necessitates greater social spending on the criminal justice system and education, for example. Worse health outcomes likewise require greater social spending on an already expensive healthcare system. (Frustratingly, it seems that the anti-marriage right has a near monopoly on discussions of the social or even the private effects of marriage. This is undoubtedly at least in part due to the reluctance of many liberals to seize on this line of research. As a result, while numerous studies have found a plethora of social benefits from marriage, only conservatives identify, spin and popularize these studies.)
As significant as the social benefits of marriage are, the elimination of the state from the institution of marriage will not, contrary to the assertions of some, result in marriage equality or more "liberty" generally. Karl Marx, in discussing the theory behind the deinstitutionalization of religion, observed that, "The limits of political emancipation are evident at once from the fact that the state can free itself from a restriction without man being really free from this restriction, that the state can be a free state without man being a free man."
In other words, the removal of the state from a given area of policy does not in fact ensure the liberty of any person or group of people -- it merely privatizes discrimination. Likewise, by eliminating civil marriage, the state would leave religious institutions as the sole custodians of the word "marriage," effectively privatizing the exclusion of queer people from marriage -- and, likely, excluding other, new groups, such as atheists. The removal of the state from marriage would actually achieve the conservative goal of total religious control over matrimony.
Nor can the timing of the popularization of the elimination (or "civil unionization") of marriage be ignored. In 2004, a single state (Massachusetts) recognized same-sex marriages. At the time, the idea of eliminating marriage altogether was laughable. Today, there are 17 marriage equality states. And there are also, apparently, an unprecedented number of politicians and political candidates willing to espouse their opposition to the legal recognition of marriage at all. For example, Senator Rand Paul (R-KY), has said, "I'm an old-fashioned traditionalist. I believe in the historic and religious definition of marriage ... That being said, I'm not for eliminating contracts between adults. I think there are ways to make the tax code more neutral, so it doesn't mention marriage. Then we don't have to redefine what marriage is; we just don't have marriage in the tax code."
Likewise, an Orthodox rabbi running for Congress in 2012 mused, "What if government withdrew from the marriage business altogether, and provided only civil unions to two consenting adults wishing to unify their lives, leaving the spirituality of the union to other entities to recognize, name, sanctify and define?"
And extremely popular conservative website RedState, following New York state's legalization of same-sex marriage, frothed, "Those who oppose gay marriage can only blame themselves for entrusting their institution with the government. The government twists in the political winds, and can only be relied on to disappoint. Most people now know that entrusting their retirement and healthcare to the government was a mistake. Entrusting marriage to the government is a similar roll of the dice."
Even the New Hampshire state legislature considered a bill to "privatize" marriage.
The substance of these ideas are not new -- but their popularity is, and many liberals (as I've discovered again and again in conversations with friends) have bought into them on the basis that, if marriage is simply an interpersonal relation about the love between two people, the government shouldn't regulate it at all.
Were the efforts to eliminate state recognition of marriage to succeed, the message sent to homosexual people would be devastating; it is the political and social equivalent of straight folks taking their ball and going home. For the past two decades, conservatives have mobilized the power of the state to prevent same-sex couples from having their partnerships recognized in the eyes of the law -- and in the eyes of society. For even longer, the power of the state has been used to oppress queer people in innumerable ways, from the criminalization of homosexuality to ignoring the AIDS crisis until it affected straight people. Only now that queer people are on the verge of achieving nationwide recognition of their relationships has the notion of eliminating civil marriage caught on.
Following the 1954 Supreme Court decision in Brown v. Board of Education, in which the Court held unconstitutional the state practice of segregation in education, the South tried every tactic it could to prevent the enforcement of that ruling. When, in ruling after ruling, the federal courts struck down these efforts as unconstitutional, the South turned to segregation academies. The idea was simple: If the South could not achieve the separation of black children and white children through its public schools, it would simply shut them down and use the money to send children to private schools where segregation was not impeded by constitutional principles. Now, there are many differences between the movement for queer liberation and the Civil Rights Movement -- but the similarity here is hard to ignore.
Happily, for the advancement of basic human dignity and individual liberty, the liberal understanding of marriage has all, but won. Increasingly, the consensus seems to be that marriage is about, solely, celebrating the love that two people share -- the characteristics which we have historically associated with marriage, such as raising children, fidelity, etc., are "merely" incidentals for many young people today. But what many of those committed to equal dignity for queer people forget is that the struggle over the definition of marriage is not the only fight to be fought.
Conservatives have opened a second front in culture war: The privatization, or deinstitutionalization, of marriage. There is nothing inherent about the liberal -- the generally accepted -- definition of marriage that dictates such an outcome; nor does the rejection of a bizarre preoccupation with the use of genitals within a marriage require the state abandonment of the institution entirely. In fact, the only way to achieve real marriage equality is to ensure the continued state recognition of a particular definition -- the liberal definition -- of marriage. This is a fight that we are losing, and it is time liberals start to fight back.