The Supreme Court heard oral arguments on issues related to marriage equality yesterday. I have not had time to review any of the reporting in any depth and there are far better blogs than mine for discussion of the particulars. But, I’ve heard some more of the arguments about same sex marriage and what it does or doesn’t or might do to the institution.
Marriage is a fundamental part of our society. We haven’t tried letting gay people get married. Might we be damaging marriage in some unexpected way? That’s how one argument goes. Some are concern trolling when they make it. Others are truly concerned.
The answer, I would suggest, has to do with whether gender difference is fundamental to what we value about marriage or if it’s incidental. (And, to a large extent, this might be circular and of no help answering the question. But, I like to muse.)
So, we have to identify: 1. What does the institution of marriage provide that we value? and 2. For each thing of value, is gender difference fundamental or incidental to that thing. Are we removing the wheels of our car or just changing the paint job?
I come down on the idea that recognizing the right of same sex couples to get married is incidental to the institution of marriage but fundamental to the couples who wish to marry.
If you consider the simple benefits side of it, it’s monumentally fundamental to the individual couple. And are you know, every marriage is different, because it’s a human institution. There is also the argument to be made that it tames the male beast – but I assume that is more primordial. The key thing is that the State is involved. What is the state’s interest in marriage today? It can’t be procreation, as we allow tons of people to marry who can’t or won’t reproduce (and there’s no fertility test, as even Scalia pointed out.) So for what compelling reasons does the state have an interest in providing 1100+ benefits – mostly monetary — on recognizing some domestic relationships over others? (Don’t have the answer, just the question. And I believe that was no compelling answer given yesterday. Ultimately that side is losing, because it’s unwilling to go to the wall — on single parents, divorces, etc.)
The difficulty of expressing in words an intuition, or defending in words an institution, that has existed for all of recorded history can be quite great. That does not mean that its defense is sheer bigotry. A lot has to do with who bears the burden of proof about whether to maintain or modify that institution.
An analogy occurred to me yesterday, on which I blogged this morning: that of the Ecumenical Councils of the Church being forced by the rise of a heresy to defend in credal words what had been understood tacitly before. So daunting was that task that the Eastern and Oriental Orthodox Churches could not agree on the words at the Council of Chalcedon and consequently separated – even though it appears that each continued without interruption to practice the identical faith.
Today, the defenders of marriage orthodoxy are forced to defend their position in words. If they demand reciprocity, and press the implications of the innovators’ own definitions, they’re accused of mean-spirited slippery slope arguments. Whom the gods the would destroy they first make mad.
“…all of recorded history….” ? Not quite, Tipsy. There was recorded history long before 1215, when ‘marriage’ in the eyes of the Church was defined by the Lateran Council.
Before that, it centered on the custom of selling your daughter for cattle and sheep, or buying a girl for your son — with cattle and sheep, and maybe some goats, AND the neighboring kingdom.
I’m talking about the intuition of sexual complementarity.
To whom did you sell your daughter? To a woman?
You didn’t buy a boy for your boy?
Whose orthodoxy?
Certainly not the “orthodoxy” of numerous Native American groups, especially in the Plains and Southwest, for whom marriage between partners of the same biological sex was routine and accepted, even celebrated.
Or is it that the members of these societies (and others with similar practices) don’t really count as “people,” and so their customs and practices can be disregarded–allowing us to declare that the customs and practices of white European Paulinists to be the orthodoxy, with no qualifiers?
Tipsy,
What else do we have to defend intuitions and institutions with but words? Many do have intuitional reactions to gay marriage. Many do not. The burden of “coming forward to defend same-sex marriage” must come with cogent defense, and there are some arguments that have merit.
Your questions about the “burden of proof” is an interesting one. Usually the party seeking to deviate from the status quo bears the burden. That happens in the legal world and the scientific world. So in the political arena, it is a an argument that must be “won” with people in the streets.
For myself, I do not accept the slippery-slope arguments. I see them as make weight claims. If something is slipping down the “slope” or remaining in place, it is because there are people pushing and pulling on the argument.
I’m having a little trouble picturing interpretive dance or a sonata as a Supreme Court argument, to be sure, which is why the burden of proof matters. “Never take down a fence until you know why it was put up” is a sound principle.
I think that you princinple is a a rational one, but I think the reaons the fence was put up has been well argued and effectively countered.
Please enlighten me a bit more on your first sentence.
I totally get what Tipsy is saying about converting intuition into language. I think it’s a valuable exercise and helps separate the rational from the irrational or the justifiable from the unjustifiable; but articulation is an imperfect process. But, words are imperfect tools even if you perfectly understand your own feelings and have a comprehensive vocabulary.
Dog, words will never be perfect for some transmission of information. We will need telepaths for that.
The Borges fable of a map with the same size and certitude of the land will never be realized.
And the map’s fate was not kind. Finnally, only shards were left in the deserts, hiding the occasional beast or beggar.