Debating Same-Sex Marriage

Peter Wood

This article was originally published on the Chronicle of Higher Education's Innovations blog.

In the mid-1980s, few Americans had ever heard of the idea of gay marriage. Those who had been paying close attention might have remembered a trio of cases in the early 1970s in which gay partners had gone to court to seek the right to marry.  In Baker v. Nelson in Minnesota in 1971, Anonymous v. Anonymous in New York in 1971, and in Jones v. Hallahan in Kentucky in 1973, the courts upheld the traditional concept of marriage as between one man and one woman. The idea of gay marriage at that point had no legal traction.

By the mid-1980s, however, the topic resurfaced as a theme in law journals, which have often served as a seedbed for novel and speculative legal theories. Alissa Friedman, for example, published “The Necessity for State Recognition of Same-Sex Marriage:  Constitutional Requirements and Evolving Notions of the Family” in Berkeley Women’s Law Journal in 1988. William Eskridge’s influential essay, “A History of Same-Sex Marriage,” was published in the Virginia Law Review in 1992.  Among other things, Eskridge critiqued the idea of more radical reformers who posed what he called a “marriage-is-rotten” argument and favored abolishing it rather than opening it up to gays. Eskridge also viewed his essay as something that “undermines various strategies essentializing marriage around concepts such as procreation sand gender.” And he turned to the analogy of laws that once banned interracial marriage as “the best” argument for ending the ban of lesbian and gay marriage “abruptly.”

Eskridge was certainly right that the analogy between laws prohibiting blacks and whites from marrying and laws restricting marriage to heterosexual couples proved to be powerful to the minds of jurists and, in time, to many members of the general public. Indeed, the “civil rights” case for same-sex marriage is deeply dependent on this analogy, and the 1967 U.S. Supreme Court case, Loving v. Virginia, that put an end to the last of the old miscegenation laws is the precedent that has appeared front and center in all subsequent judicial findings in favor of same-sex marriage.

The concept of same-sex marriage may have had some advocates in earlier generations.  Eskridge clearly thought so. Much of his lengthy essay is a search for precedents with a great deal of attention devoted, for example, to an institution called “brother making” that the Church offered in the Middle Ages. But the real significance of Eskridge’s work and that of other law professors was their crystallization of a civil-rights-based theory in favor of gay marriage.  The theory did not lie untested for long.  Eskridge was one of the attorneys who represented Craig Dean in his suit (begun in 1991) against the city of Washington DC, for denying Dean and his male partner the right to marry. The suit failed, but it clearly sharpened Eskridge’s and other pro-gay marriage lawyers’ sense of the terrain. That theory quickly gained enough ground that the U.S. Congress decided to act preemptively to stop it.  It did so by passing the Defense of Marriage Act (DOMA), signed into law by President Clinton, September 21, 1996.

At that point, few Americans took seriously the notion that same-sex couples would achieve popular support for the right to marry, but a broad segment of the public worried about an activist judiciary and an adroit plaintiffs bar that could advance the gay marriage agenda despite popular opposition. The Congressional majorities in favor of DOMA were lopsided and bipartisan. (The Senate vote was 84 to 15; the House vote was 342 to 67.) The immediate stimulus for the bill was the expectation that Hawaii might have been on the verge of creating a legal form of same-sex marriage. DOMA defined marriage as a relationship between one man and one woman and specified that no state could be required to recognize a same-sex union authorized in another state.

A lot has changed since 1996. In the fifteen years since DOMA passed, gay marriage went from a speculative and distinctively fringe idea to an article of faith for many Americans who have bought into the concept that same-sex marriage is a fundamental matter of civil right. On February 23, 2011 Attorney General Eric Holder sent a letter to House Speaker John Boehner declaring that the Obama administration, which had been pursuing a tepid defense of DOMA in federal court, would henceforth sit on the sidelines. He wrote:

The President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

The movement to create a new institution of gay marriage has not, of course, been wholly successful. For the most part, it has arrived by judicial imposition, as it did first in Massachusetts (In Goodridge v. Department of Health, 2003) , and before that in the halfway step of Vermont’s “domestic partnerships,” (following the Vermont Supreme Court’s decision in Baker V. Vermont, 1999).  When put to a ballot initiative in California in November 2008 (Proposition 8), the idea that marriage should be restricted to one man and one woman passed with over 7 million votes (more than 52 percent). That law is now under court challenge. Last August in Perry v. Schwarzenegger, U.S. District Chief Judge Vaughn Walker ruled that Proposition 8 is unconstitutional. His ruling, however, has been stayed by the Ninth Circuit pending appeal. The case could go to the U.S. Supreme Court.

The Academic Conversation?

The debate over gay marriage ought to be considered one of the central social issues of our time, and indeed for many Americans—left and right—it is. It deals with a question of basic social relations within and between generations and I find it perfectly sensible that advocates and critics of gay marriage should both see it as a matter of urgent concern. The perspective that seems less sensible to me is the one which dismisses the controversy as a bore or nuisance: the idea that when it comes to marriage, all we are talking about are private choices that are no one’s business other than the parties directly involved. That’s an atomistic view of society. Marriage, whatever else it is, is a social institution. People marry because it means something beyond a private choice, and we have good reason to concern ourselves with that broader meaning.

One might think on that basis that higher education would be at the epicenter of the debate—that we could turn to the university to hear both sides (or all sides) making their best case.  Unfortunately that’s not how it has worked out.  Rather, the academic discussion has been dominated by those who view gay marriage as a civil rights issue. Those who argue against gay marriage haven’t been entirely silenced, but you have to look pretty hard for their words. One source is Lynn Wardle’s edited volume, What’s the Harm? Does Legalizing Same-Sex Marriage Really Harm Individuals, Families, or Society? (2008) which gathers together arguments on both sides.  The unusual thing in this book is the inclusion of academics who dissent, on more or less conservative grounds, from the prevailing pro-gay marriage position. David Blankenhorn’s The Future of Marriage (2007) offers the most extended liberal critique of gay marriage position, and Blankenhorn was notably the star expert witness who spoke in defense of Proposition 8 in last year’s trial.

The voices of dissenting academics are underrepresented in this conversation, mostly because dissenters know that they will be subject to pretty extreme verbal abuse if they speak up. The National Association of Scholars has never taken a position on gay marriage but I assume its membership, if polled, would probably lean in favor of same-sex marriage. But before I came to NAS as its executive director and then its president, I published a handful of articles on the topic.  As a result I still get occasional hate mail and occasional I-wish-I-could-speak-out-too-but-I-don’t-dare letters. I don’t discount the apprehensions of the latter.  A hazmat suit is standard apparel if you choose, as an academic, to wonder whether same-sex marriage should be viewed entirely through the lens of civil rights. This is an instance where passions tend to crowd out civil exchange, and a good many academics join in the vituperation. But on the principle that a genuine conversation shouldn’t be forestalled by expressions of indignation or by intimidation, I want to register two points.

The Triumph of the Academy

First, the astonishing rapidity with which gay marriage has gained legitimacy in the eyes of the courts, the media, the entertainment industry, and a large segment of the public owes a great deal to the academy. The movement for gay marriage obviously did not arise exclusively within academic circles, but its early success was built on theory and rhetoric crafted first by law school faculty members whose work was amplified by faculty members in women’s studies and several of the social sciences. The crafting of gay marriage as a proposal for social reform, of course, connected with the organized interests of many activists outside the academy, and I mean to take nothing away from their energetic advocacy. Yet it is impossible to imagine this ultra-fast progression from speculative theory to judicial fiat absent the role of activist professors.  It was within the academy that the argument that “marriage” should be seen through the lens of the civil rights movement was assembled. And the arguments that propelled gay marriage through the courts in several states were grounded in the published work of academics who succeeded in keeping the focus almost entirely on questions of how gay partners were denied access to legal benefits enjoyed by married heterosexual partners. This work has heavily influenced in the judicial decisions that took gay marriage from an eccentric fantasy to a legal fact.

The success of the gay marriage movement stands for many Americans as part of the larger political polarization of the nation in which the universities have played a significant part. Polls routinely show significant differences in the attitudes towards gay marriage of people over and under age 40. For instance, an April 2009 New York Times/CBS poll found, as the New York Times put it:

31 percent of respondents over the age of 40 said they supported gay marriage. By contrast, 57 percent under age 40 said they supported it, a 26-point difference. Among the older respondents, 35 percent said they opposed any legal recognition of same-sex couples, be it marriage or civil unions. Among the younger crowd, just 19 percent held that view.

Such polls point to what is probably demographic destiny. As the bearers of this view replace the baby boom generation, it seems nearly certain that they will sweep aside what is now a popular majority opposed to gay marriage.

This change can be celebrated as a victory of enlightened opinion—or regarded as one of the unfortunate consequences of the estrangement of American higher education from core Western values and traditions. But either way, it is hard to avoid the conclusion that the academy has had an influence in rolling out one of the largest and most sudden attitudinal changes in Western history.

More to the Story

The gay marriage debate, dominated by “civil rights” argument and rhetorical condensations such as “marriage equality,” has been reduced for many people to an intransigent stand-off of only two parties: those who advocate for gay marriage as a civil right vs. those who have religious objections.  Are there no secular arguments against gay marriage worth considering?

Here’s one.

The current issue of Science has a report by a team of researchers led by Kim S. Hill and Robert Walker, who have examined the extent to which contemporary hunter-gatherer bands are comprised of close relatives. They found that fewer than 10 percent of people in a typical band are parents, their children, or siblings. The finding runs against a widely held view that the solidarity and cooperation that are deep characteristics of human society arise from the shared kinship of the members of the band.  The most vigorous advocates of that view are evolutionary psychologists, who I expect are poring over Hill and Walker’s data.

The Science article has already snagged attention beyond the realm of people who specialize on hunters and gatherers, or even human evolution.  The New York Times reported on the story—twice within a few days,  Nicholas Wade in “New View of How Humans Moved Away from Apes” (March 11) emphasizes that the data supports a view that humans learned to cooperate with each other by keeping track of more distant kin.  And Wade devoted a second story, “Supremacy of a Social Network,” (March 15) to a theoretician, Bernard Chapais at the University of Montreal, who posits (in Wade’s words) that “the pair bond was the pivotal event that opened the way to hominid evolution.”

Meanwhile, the libertarian journal Reason has also notched the Science report, with an essay by Ronald Bailey that sees the implication of Hill and Walker’s findings as “Trade Made Us Human.”  As Bailey summarizes it, “trade and the division of labor are hallmarks of human cooperation,” and the Science article nicely buttresses that proposition.

It strikes me as pretty notable all by itself that a technical anthropological study would register so strongly with the liberal New York Times and the libertarian Reason. And perhaps even more strongly that both are right.

What if anything does this have to do with same-sex marriage? Well, it has much to do with the nature of marriage per se.  Social anthropologists were pointing to the fundamental rules of human society more than a century ago when the British anthropologist Sir Edward Tylor (1832-1917) declared that human groups over the long course of prehistory must have been time and again faced with the choice “to marry out or die out.”  That is to say, the glue that held human groups together, at least during the tens of thousands of years in which all humans lived by hunting and gathering, was marriage.  We are unlike chimpanzees and all other primates in that regard.  They don’t form pair bonds.  We do. And the kind of pair bonds we form entail marriages between men and women at some degree of social distance.

Anthropology’s picture of this situation only deepened as we grew to know more and more about a greater variety of societies.  The late French anthropologist Claude Levi Strauss saw the “exchange” of women between groups as the fundamental facts that made human culture possible in the first place.  Of course. It is not just women who are exchanged:  it is men and women in an endless cycle of reciprocity that weaves together the participants in all human societies.  Or almost all.

Marriage Plasticity

These days the mention of the universality of marriage in ethnographically-informed circles will quickly get you a lecture on some highly exceptional cases.  Top of the list are the Na, a matrilineal tribe of farmers in southwest China near the Burmese border.  The Na appear to be singular in their strong preference for avoiding marriage altogether.  Children belong to their mother’s household and lineage, and Na conceptualize their society as lacking both “husbands” and “fathers.”  The story is a little more complicated than American enthusiasts for all-things-Na typically let on.  Na are perfectly familiar with marriage but regard it as an inferior expedient for lineages on the verge of dying out.  And Na culture is rife with ghostly remnants of marriage, including some of the world’s strictest taboos against brothers and sisters being left alone together.  But the real point in citing the Na—the only point really—is to underscore that “marriage” is not an absolute necessity in human society.

And indeed it is not.  Human societies can (with difficulty) do without marriage.  They can also bend, stretch, redefine, and repurpose marriage in a bewildering variety of ways.  Given this plasticity, it is a relatively easy thing to assemble a superficially plausible case that “marriage” is entirely a matter of social conventions.  It is, as William Eskridge argued back in 1992, “socially constructed.”  Eskridge, not so incidentally, drew on various anthropologists to make his point, including a well-known essay by Edmund Leach, who held that “marriage” meant so many different things in so many places, we anthropologists should conclude that it is just a term of convenience.  In light of this, why shouldn’t we regard gay marriage as just another among the seemingly limitless choices that we create for ourselves?

That question, left hanging, may be the end of the matter.  It clearly was for Judge Vaughn Walker in the Proposition 8 case.  Certainly there is no law of nature that prevents humans from trying to create a social order based on a conception of marriage that includes same-sex couples.  But there are other questions that are also left hanging.  The view from classic social anthropology is that the family reproduces itself.  (It is a view ironically shared by many anti-family feminists and queer theorists.)  Girls and boys learn to be mothers and fathers by growing up as daughters and sons.  We are from the start—from the moment of birth—caught in a web of kinship.  And the strands of that web are woven of sexual complementarity.  The family in turn is part of the wider reciprocity created and continually recreated by the marriages that connect us with wider circles of kin.

The Essentials

When we learned to live on bases other than hunting and gathering, these arrangements came with us and they have not—at least until now—faced an existential challenge.  Contemporary empirical studies like the one by Hill and Walker continue to deepen the picture of how fundamental sexual complementarity, pair bonding based on it, and the links created by marriage have been to human flourishing.  Perhaps we have reached a point of social organization where we can discard these principles like an old set of training wheels and discover a giddy new freedom to arrange ourselves in unprecedented ways.  The ethnographic record (contrary to Eskridge and others) supplies no real evidence that any society has succeeded at this venture prior to the experiment now underway in Western Europe, Canada, the United States, and a few other places.  There are plenty of instances of societies more relaxed about homosexuality than the West has been (until recently), but the proposal to redefine marriage as sex-neutral really is a radical departure.  That might give us some pause if we are inclined to weigh the known record of human experience as a relevant datum.  If not, not.  The argument that we should indeed weigh the ethnographic record, however, comes not from cranky conservatives but from gay marriage advocates themselves.  Eskridge’s famous essay opens with an account of a nineteenth century Zuni elder who was a berdache (a cross-dressing homosexual) “married to a man.”  The Na are only one of hundreds of tribes whose customs have been hauled into court (literally) to testify to humanity’s capacity to create workable social arrangements that accommodate alternatives to heterosexual marriage.

I welcome those ethnographic excurses, though I think the data hasn’t been especially well served in its translation to social advocacy.  It looks to me that marriage in the sense of durable, socially-recognized links between men and women centered on the reproductive family still has a pretty strong claim to being the foundational institution of human society.  Foundational, however, doesn’t necessarily mean omnipresent or indispensable.  It is clearly possible to create social order without marriage and invent institutions that perpetuate themselves on bases other than familiar reproduction.   I hesitate to name what some of these are in view of the inevitable rhetorical response that “Wood likened gay marriage to X,” when Wood did nothing of the kind.  But let’s say that reproduction outside marriage has never exactly favored the flourishing of women; almost always disadvantages quite a few men as well; and has a long record of extremely adverse consequences for children.  Perhaps we can have a system of same-sex marriage that somehow navigates around these problems, but we shouldn’t approach the matter as though these are imaginary obstacles.  Marriage, for better and worse, has provided humanity its best means of channeling our sexuality, domesticating our wildness, embedding us in community, and nurturing our children.  Will same-sex marriage fit itself to that pattern or undermine it?   Because the pattern itself is based on the privileged position of heterosexual reproduction within matrimony, I suspect same-sex marriage will end up as the exception that hollows out the rule.  ”Marriage equality” means marriage lite, marriage without its capacity to do the heavy lifting.

This observation surely falls within the broad category of arguments that Eskridge believed he had thoroughly refuted under the heading as cases of “essentializing marriage around concepts such as procreation sand gender.”  I recognize “essentializing” as a term of rhetorical dismissal among those whose epistemology precludes the possibility that institutions that have intrinsic variety and variability can also have a core meaning and purpose.  But there are pretty powerful reasons for thinking that marriage really does have a core function underneath all that variety and historical contingency.

In simplest terms, marriage organizes human sexuality in a manner that gives rise not just to stable pair-bonds, but to broader ties of kinship.  The people in those hunter-gatherer bands who are not parents and children or siblings to one another are almost all in-laws, cousins and uncles and aunts of various degrees–and they know it.  I know this sounds like an empty argument to contemporary Westerners who are used to thinking about marriage as what the sociologists Anthony Giddens called “pure relationship,” e.g. focused inwardly on the married couple itself and their satisfactions.  But even in the atomized West, marriage also remains profoundly a matter of sexual complementarity within family ties.  The differences between fathers and mothers are, contra Eskridge, essential, and they extend outward to other relatives and inward to the child.

We might well succeed in displacing the family as we know it and replacing it with “families of choice” or some other rubric for non-natalism.  For that matter, I am not clear that we can now stop ourselves from carrying this radical change forward.  But I am not optimistic about the consequences.  It looks to me that we are turning away from something basic in the way human societies organize themselves.  In the hope of achieving a greater equality we may put at risk the means by which the rough kind of equality and cooperation became possible in the first place.

Before someone else says it, let me acknowledge that this is a speculation on my part.  But it is no more speculative than the vision offered by advocates of same-sex marriage.  And it has the advantage of being based on a few millions years of human evolution rather than a few decades of law review articles.

Image: "Rainbow Cake" by La Despensa del Gnomo // CC BY-SA

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