So-Called Marriage

Feb 19, 2004 |J. Budziszewski

Prof Theo talks about homosexuality, marriage and the law.

I'd been tied up with students all morning. No sooner did student number ten leave than student number eleven appeared. It was Theresa. "Hi, Professor T. This isn't about your course. Have you got a few minutes anyway?"

"Fewer and fewer, it seems. Are there still a lot of students out there waiting?"

"The hallway's empty."

"I must have scared the rest away. Come on in."

She plopped down, but instead of speaking, she grinned at me.

"What's funny?"

"I read in the Pill about those students chanting slogans outside your classroom." The Pill is the student newspaper. I'd given an interview the day before, opposing so-called gay marriage. You can guess the rest.

"Have you come to afflict me too, O my tormentor?"

"No, I'm on your side. In my nine o'clock class, half the students tried to shout me down for agreeing with you."

"Your instructor didn't keep order?"

"Are you kidding? Professor Thanatos says 'I have one rule for class discussion: Survival of the fittest.'" She shrugged. "Mom and Dad taught me to be thick-skinned. When someone tries to keep me from being heard, I just stand up and talk a little louder."

"How can I help you this morning?"

"I'm not satisfied with the way I presented my case, so I thought I'd go straight to the horse's mouth. That's you."

I considered neighing, but thought better of it.

"Could I just lay out my argument step by step?" she asked. "As soon as you spot a problem, you can say 'Stop' and I'll stop."

I smiled. "Just what I was about to suggest."

"Okay. Homosexual acts are morally wrong because — "

"Stop."

"Already?"

"Yes. I agree that they're morally wrong, but that's not the place to start. You probably don't need to make that case at all."

"Why not?"

"Because the question on the table concerns enacted law — marriage law drawn up and enforced by the government — not moral law."

"Shouldn't they be related?"

"Certainly, but not in the way you're thinking. It's not a moral requirement that everything immoral should be illegal."

"Why not?"

"One big one is that the government's job is to care for the common good, not the individual good. For example, it's immoral to be a glutton, but the law doesn't keep tabs on how many rich desserts you eat. It's immoral to get drunk, but the law doesn't pay much attention if you do it in the privacy of your home. Now if you get drunk before flying a commercial jet, that's a different matter. Are you with me here?"

"I guess so."

"Another big reason is prudence. The law should encourage moral virtue, but if you try to suppress every vice all at once, you may end up making things worse. Think of what happened during Prohibition. A good rule of thumb is to concentrate on the worst vices, and proceed with caution."

"I guess I agree with that too, but this is pretty discouraging. If I can't go directly from 'X is immoral' to 'X should be illegal,' then how can I argue against gay marriage at all?"

"It's easier than you think. You just have to be specific about the kind of law you're talking about and the moral purpose behind it. So what kind of law are we talking about?"

"Marriage law, of course."

"Then here's your first question. Why should we have laws about marriage in the first place?"

"To strengthen marriages. Why else?"

"I'll accept that answer. Question two. Why should lawmakers care whether or not marriages are strong?"

"I don't see how you can have strong families without strong marriages, Prof."

"Another good answer. Question three. Why should lawmakers care whether or not families are strong?"

"Because the family is the basic unit of society."

"If that's all you say, most people won't understand what you mean. Spell it out."

"Isn't it obvious?" she said. "Families produce kids. They shelter and nurture them and teach them how to be good. If that goes well, then the kids grow up, take on social responsibilities, get married and form new families. If it goes badly, then either they don't grow up, or they grow up to be irresponsible and have dysfunctional families. Either way, everyone suffers. The society might even die out."

"Ultimately, then, the reason we have marriage laws is the building up of society, generation by generation, through procreation. Children need mothers and fathers, and that's just what husbands and wives become. Right?"

"Right."

"Now homosexual unions are irrelevant to that purpose, aren't they?" I asked. "We're not talking about whether they're bad or good. You may think they're abominable, or you may think they're the best thing since sliced bread. The point is that they have nothing to do with the purpose for giving legal recognition to marriage; they don't keep the great wheel of the generations turning."

"So I ought to be able to present this argument even to people who don't see anything wrong with homosexual acts."

"That's right. But are you ready for the next step?"

"There's a next step?"

"Of course. You have to anticipate possible objections to the argument. You have to be ready to respond to them."

"Objections like what?"

"Coming up with them is your job. You're the student whose classmates have been ganging up on her."

"But you're the professor who gets chanted at by campus radicals."

"Nice try," I laughed, "but I'm not the one who needs help! No more games. State a possible objection."

"Well," she said, "here's one. "We've been saying that homosexual unions are irrelevant to the purposes of marriage laws because they're sterile. Right? But sometimes the union of a man and a woman is sterile too."

"That's true," I said, "but the tendency of male-female union is to produce children. It's sterile only when something interferes with that tendency. Homosexual union can't be anything but sterile."

"How about this, then? In a sense, you can get around sterility — by adoption, or maybe by sperm donation. Someone might say 'See? Homosexual unions aren't irrelevant to the purposes of marriage laws after all. Gay couples can't produce children, but they can raise them.' How are you going to get out of that one? I can't see arguing that a lesbian can't love her child."

"The problem with a pair of homosexuals raising children isn't that they couldn't love them; it's that Moms and Dads are different, and children need one of each. Having 'two Moms' or 'two Dads' just isn't the same. This is common sense, but a large and growing body of sociological research backs it up."See Bruce J. Ellis, John E. Bates, Kenneth A. Dodge, David M. Fergusson, L. John Horwood, Gregory S. Pettit, and Lianne Woodward, "Does Father Absence Place Daughters at Special Risk for Early Sexual Activity and Teenage Pregnancy?" Child Development, Vol. 74, pp. 801-821; David Popenoe, Life Without Father (Harvard, 1996); Eleanor Maccoby, The Two Sexes (Harvard, 1998); and Steven Rhoads, Taking Sex Differences Seriously (Encounter, 2004).

"I buy that," Theresa ventured, "but some people don't agree with what we've said about the purposes of marriage laws. They say marriage isn't about procreation, but about love. I don't think I'd want to argue that homosexuals can't have genuine affection for each other."

"You don't have to," I said. "The crucial point is this. Of course love is crucial to the procreative partnership of the husband and wife. But the law isn't interested in their love per se. What it's interested in is the procreative partnership. That's what it's protecting when it establishes the legal status of matrimony. If affection outside of the procreative context were enough to create eligibility for that status, then you may as well say that I should be married to my dog, my cat, and my fishing buddies."

"I can think of one more objection," Theresa said. "A gay activist might argue 'If you insist on thinking that the only reason for marriage laws is to protect the procreative partnership, go ahead. Don't let me stop you. But be serious now. What would it hurt to let homosexuals get married? After all, it's no skin off your nose, and it would mean so much to so many of us."

I smiled grimly. "Both premises are false. In the first place, Theresa, it's not true that so-called gay marriage would mean 'so much to so many.' Very few homosexuals really do want to be considered married. In localities where 'civil partnerships' have been made available, for example, only a small percentage of homosexuals have actually taken advantage of them. This suggests that the reason activists seek legal change isn't to get married, but to get approval. In the second place — and this is much more important — it's not true that changing the marriage laws wouldn't take any skin off society's nose. The law is a school. For better or for worse, it teaches. What principle would the marriage laws teach if they did offer the legal status of 'marriage' to homosexual unions?"

She answered, "The principle that marriage and procreation have nothing to do with each other."

"Would that be good for families?"

"I think it would be terrible for them."

"Then you know how to answer the objection."

"Professor Theophilus," Theresa asked, "these are great arguments — but do you have any ideas for getting people to listen to them?"

"That," I replied, "is much harder."

Copyright 2004 J. Budziszewski. All rights reserved.

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