This is a nine-part installment designed to help everyone understand marriage equality. For some, it will be an education, for others, it will be helpful when discussing the subject. I have included links to each chapter at the end, as well as information about the author.
THE SANCTITY OF THE INSTITUTION
Inherently related yet subtly distinct from the slippery slope argument is the notion that same-sex unions would somehow undermine the institution of marriage. Proponents of this viewpoint can be expected to make the following empirical observations: Marriage is already in a weakened and precarious state; At present, over 50% of marriages end in divorce; An almost epidemic number of children are being born out of wedlock; Marriage is the “bedrock of ourculture”; It must be protected at any cost.
Gay marriage opponents go on to conclude their points with apocalyptic visions of the moral decay of our nation – legalizing gay marriage would threaten the sanctity of the institution upon which our very society rests. The editors of the Catholic magazine Commonweal, for instance, argued that: “[E]levating same-sex unions to the same moral and legal status as marriage will further throw into doubt marriage’s fundamental purposes and put at risk a social practice and moral ideal vital to all.”
[W]e are not predicting that there is going to be an erosion of marriage, but I think the melancholy point is this, that the notion of marriage may not be extended to take in, to accommodate the concern for gay marriage without setting off many other kinds of changes, and as a result of those changes, I think we would find that marriage would not have that special kind of significance that makes it an object right now of such craving.
A) Confronting the Stereotype
Unfortunately, a great deal of erroneous information has been disseminated in recent years involving stereotypical portrayals of gay people, the gay rights movement, and a so-called “homosexual agenda” to undermine American cultural standards. With respect to marriage specifically, these misconceptions often translate into a fear that once permitted to wed, gays and lesbians will make a mockery of the institution by treating the marital bond as less than sacrosanct, or, worse yet, will threaten the institution of marriage by deliberately sabotaging it from within.
Of course, these fears lie wholly unsupported in fact. Lesbian, gay, bisexual and transgender citizens who want to marry want to do so for much the same reasons heterosexuals do – ideas of mutual love, support, and commitment. Indeed, gay people would likely be the institution’s most “enthusiastic recruits,” seeking not to destroy the institution, but rather to take part in it, and thereby strengthen it.22 In the words of Rabbi Yoel H. Kahn: “I do not believe that encouraging commitment, stability, and openness undermines the institution of family — it enhances it.”
B) The Hypocrisy of the Argument
If conservatives are truly worried about the demise of marriage, why not target Las Vegas-style weddings, or no-fault divorce laws, or adultery? Why the fixation on the one group of people excluded from the institution, the one group of people who could not possibly be responsible for its decline? The answer is clear. As Stephen Chapman put it: “Conservatives say they abhor gay marriage because they value marriage. The truth is they abhor gay marriage because they abhor gays.”
C) The Cross-Cultural Analogy
It seems strange, if not hypocritical, that the same people who proclaim the institution of marriage to be “the bedrock of our civilization” also argue that it is so fragile that allowing gays access to it will endanger it forever. Countries such as Denmark, Sweden, Canada and the Netherlands, which have all legalized gay marriage and are hardly racked by moral decay, provide concrete evidence that this fear is grounded in neither fact nor reason.
D) Strengthening the Institution
In some ways, one might expect that gay marriages would not mirror their heterosexual counterparts, an inevitable byproduct of gender differences between same-sex and opposite-sex unions. While some have theorized that this alteration in traditional marital structures would destroy the institution, a better argument would be that it would actually strengthen the institution by pushing marriage in its evolution towards being a partnership of equals.
Professor Nan Hunter, for instance, theorizes that the traditional notion of marriage, with man as head of the household and wage-earner and woman as housekeeper and childrearer, would necessarily be challenged by examples of same-sex households where a woman is the wage-earner, a man is the housekeeper, or, ultimately, the partners share the roles.25 Recognition of same-sex marriages, she notes, “would radically strengthen and dramatically illuminate the claim that marriage partners are presumptively equal.” In this vein, Hunter and others theorize that heterosexual women could benefit from the legalization of gay marriage almost as much as gays and lesbians.
Lets put this all in perspective. What is this all really about?
E) A Note On Change
Finally, it would be wise to note that arguments which employ slippery slopes or refer to the “sanctity of the institution” are for the most part simply arguments of fear. People are always wary of change, and for many, gay marriage represents change of a particularly powerful kind. In this vein, as we explored with respect to slippery slope arguments, it might help to note that the institution of marriage has undergone tremendous transformations over the past few centuries; recognition of same-sex unions would not be the first, nor the most drastic, step in the evolution.
Here’s a brief history lesson: To begin with, African-American slaves at one time had no family rights and were not permitted to marry. As a nineteenth-century jurist put it, “whether [slaves] ‘take up’ with each other by express permission of their owners or from a mere impulse of nature, [their marriages] cannot in the contemplation of the law make any sort of difference.”
While African-Americans were later extended the right to marry, miscegenation laws remained on the books. Virginia’s antimiscegenation law, for instance, was first adopted in 1691 to prevent “abominable mixture and spurious issue,” and was not declared unconstitutional until 1967.
The institution of marriage has evolved in other ways as well. At one point, marriage was essentially a business deal which had little to do with love. Marriages cemented family ties, prevented feuding between rival clans or countries, and provided social status for men and economic support for women. Marriages were typically arranged, and bride-prices were bargained between the father of the bride and her future husband.
Vestiges of these business transaction functions of marriage remained a part of the marital institution until recent times, including those which treated women as the “property” of their husbands. In 1967, for instance, every state exempted from its criminal laws a rape by a husband of his wife – a woman was seen as the “property” of her husband and had a “duty” to provide him with sexual gratification. Ultimately, women succeeded in convincing legislators that the entitlements of marriage did not include a husband’s free reign over his wife’s body, and every state either curtailed or repealed its marital rape exemption by 1993.
Indeed, if one takes a broad look at the institution, very few aspects of marriage have stayed the same: Marriage is not “traditionally” monogamous (in the Old Testament, Jacob’s two wives and two concubines produced the head of the twelve tribes, and King Solomon is said to have had 10,000 wives); Does not “traditionally” involve a religious blessing (in early Christian unions, marriage was not yet a sacrament); and was not “traditionally” recognized by law (centuries of European “parole” marriages were conducted outside the law). As scholar E.J. Graff notes: “Each era’s marriage institutionalizes the sexual bond in a way that makes sense for that society, that economy, that class.… Marriage is – marriage has always been – variations on a theme.”
I talk, obviously as others do, to people in my district, and I have people tell me:.
- “I am worried about losing my Medicare.”
- “I am worried about losing my job.”
- “I am worried about the lack of safety on the streets.”
- “I am worried that there is not enough money now to continue with toxic waste cleanup.”
Never yet has someone come to me and said, “Congressman, I am terribly threatened. There are two women who are deeply in love a couple of miles away from me. And if you do not prevent them from formalizing their union, this will be terrible for me, and, in fact, will threaten my marriage.” I know of no heterosexual marriage, the form of marriage that we have that has sustained us, that is threatened by this. – Congressman Barney Frank, during Congressional hearings on the 1996 Defense of Marriage Act.
ABOUT THE AUTHOR:
Seth Persily is a member of the Georgia Bar and a cum laude graduate of Harvard Law School. While at Harvard, Mr. Persily served as Publisher of the Harvard Law Record and co-President of the Lambda Law Association. Mr. Persily obtained his undergraduate degree from Duke University, where he served as President of the Duke Gay, Bisexual & Lesbian Association. He graduated Phi Beta Kappa, with a B.A. in Religion and a minor in Gay & Lesbian Studies.
Mr. Persily worked at the Atlanta law firm of Sutherland, Asbill & Brennan before opening his own practice, Persily & Associates, which concentrates on employment discrimination and real estate law. He serves on the Board of Directors for Georgia Equality as well as YouthPride.
- Arguing Equality Chapter 6: Gay Marriage is Slippery Slope? (waldina.com)
- Arguing Equality Chapter 4: Gay Marriage and Interracial Marriage (waldina.com)
- Arguing Equality Chapter 5: Gay Couples and Children (waldina.com)
- Arguing Equality Chapter 3: Sexism and Gay Marriage (waldina.com)
- Arguing Equality Chapter 2: Marriage is a Civilizing Influence (waldina.com)
- Arguing Equality Chapter 1: Gay Marriage as a Matter of Justice (waldina.com)