Marriage and Same-Sex Unions: One and the Same?

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Activists Lose Some Battles, But Debate Goes On

NEW YORK, NOV. 22, 2003 (Zenit) - Same-sex "marriage" is once more in the headlines after Tuesday's controversial decision by the Massachusetts Supreme Judicial Court. In a 4-3 decision, the court ruled that same-sex couples have a right to civil marriages, according to the provisions of the state constitution. The decision follows recent defeats for same-sex couples in state courts in New Jersey and Arizona, where appeals may still be made.

The judgment, written by Chief Justice Margaret Marshall, affirms that the definition of marriage as a union of a man and a woman unjustly "deprives individuals of access to an institution of fundamental legal, personal and social significance" just because they are of the same sex.

There is a lot more at stake than just a case of simple discrimination, as a wide-ranging collection of opinions entitled "Marriage and Same-Sex Unions -- A Debate," published just a few months ago, reveals.

Edited by Lynn Wardle, Mark Strasser, William Duncan and David Orgon Coolidge, the work pairs off contributors in a debate format on a succession of topics, from the nature of marriage and what same-sex unions imply, to notions of equality, discrimination and constitutional rights.

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One of the main themes running through the book is the nature of marriage itself as an institution. Arguing in favor of same-sex marriage, Evan Wolfson sees marriage mainly as a source of benefits. He maintains that married couples receive from the state multiple protections and responsibilities, which are being unjustly denied to same-sex partnerships. In this sense, putting same-sex unions on the same level as heterosexual marriage is an essential part of the battle to gain equality for homosexuals, he says. Wolfson sees positive elements in establishing legal recognition of civil unions, such as has occurred in the state of Vermont. But "they do not provide equal benefits and they leave couples and those who deal with them exposed to legal uncertainty," he said.

In response, Maggie Gallagher points out that Wolfson's argument ignores a key question: whether marriage is just another word for a private, intimate relationship or if it is something more. Affirming the latter position, Gallagher explains that marriage is a normative social institution; its reason for being is to support and encourage a certain type of union that is long-lasting, child-centered and faithful. Marriage is a key institution in producing, rearing and nurturing the next generation. Therefore, putting same-sex unions on the same level as marriage would be a move in exactly the wrong direction we need to take in order to cope with family difficulties, Gallagher contends.

Gallagher also notes that the forms of marriage in diverse societies share some common features. Marriage creates rights and privileges between the couple and their children. It is also normative, defining for the children what the relationship is and what purposes it serves. Same-sex marriage puts all this at risk.

"Wholly malleable"

William Duncan also addresses this theme, noting that activists are attempting to use the state to redefine marriage in the name of reshaping civil society. The new marriage model has a number of characteristics. To wit: Marriage has nothing to do with sexual difference; it is a wholly malleable social institution; same-sex couples are held to be just as capable of looking after children; it is to be distributed by the state as a matter of basic fairness.

This is a "dramatic redefinition" of marriage, argued Duncan. The relationship between a man and a woman is qualitatively different from that of a homosexual couple. He also observed that marriage pre-exists the state and has been recognized by the latter because of its intrinsic value. This is not a theological argument, he noted. Marriage did not come into being by statute and "is not, therefore, wholly malleable."

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In relation to procreation, Duncan pointed out that marriage law has recognized the reality that only the sexual relationship of a man and a woman can lead to the conception of a child. "This creates a state interest in the marital relationship that just does not exist in other relationships," he wrote.

Marriage has also always been considered to require a man and a woman, continued Duncan, "because the unique contributions of men and women to child rearing cannot be duplicated by any other contexts in which child rearing takes place."

Teresa Stanton Collett, in her essay, defends the proposition that marriage should receive special protection. She looks into the roots of why homosexuals are having success in trying to redefine the institution. She sees as factors the introduction of no-fault divorce, the changing sexual mores that no longer view intimacy outside marriage as reprehensible, and the use of birth control to render marital unions sterile. All these have combined to change both how society sees marriage and how couples see the law in relation to their union, Collett contends.

With marriage increasingly seen as an "at-will affiliation of affection" and child bearing as an optional extra, it is much more difficult to defend limiting state recognition of marriage as something inextricably linked to procreation and formation of a family unit. But the answer is not to further weaken marriage by extending it to same-sex couples, says Collett. Rather, we need to "begin the more difficult work of re-establishing the formal recognition of the connection of marriage to self-giving, sexual restraint and procreation."

Polygamy next?

In his defense of same-sex marriage, Mark Strasser proposes that allowing homosexual couples such legal status would bring benefits for the state. Since marriage promotes stability for adults and children and helps them to lead happier and more stable lives, allowing more couples to enter into this status would be a plus, he argues. The state would benefit from the mutual economic support that a married couple provide for each other, Strasser says. Public health benefits might also be achieved and eventual separations of couples could be dealt with in a legally ordered way, he contends.

In a separate essay dealing with some of the same matters, Arthur Leonard also argued that giving same-sex unions the status of marriage will enable greater regulation of those couples who raise children, thereby looking after an important public policy interest.

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But John Witte Jr. warns that it is too "glib" to affirm that collective interests and productivity will be enhanced by allowing same-sex marriage. Public opinion is very divided on the issue, Witte notes, and granting such rights precipitously will only exacerbate the current turmoil and set the stage for serious social conflict in the future. Moreover, if social expediency and individual happiness become the criteria for reforming marriage laws, "then arguments against incestuous, adolescent and polygamous marriages must also fall aside," he writes.

And Lynne Marie Kohm points out that marriage is not a social construct but exists according to an original design pre-existent to the law. Thus, parenting by a same-sex couple would not be a source of public benefit because it denies the child either a father or a mother, inevitably leading to problems.

Adding their voices to this debate, the bishops' conferences of England and Wales, Canada, and the United States have all recently published documents arguing against granting legal recognition to same-sex unions.

The Pope too has spoken out on issue, in particular during his Oct. 23 address to the English and Welsh bishops in Rome for their five-yearly visit. Of particular concern, noted John Paul II, "is the need to uphold the uniqueness of marriage as a lifelong union between a man and a woman in which as husband and wife they share in God's loving work of creation. Equating marriage with other forms of cohabitation obscures the sacredness of marriage and violates its precious value in God's plan for humanity." A heavy responsibility lies on politicians and judges as they ponder this issue.