How to answer a question with a million answers?
Many of which are themselves questions?
I am about to suggest that marriage is, in a strictly public sense, delimited by "...the intrinsic emotional, psychological, or sexual satisfaction which the relationship brings to the individuals involved." (Cere, Spring 2001) Any further goals or details, including almost any religious beliefs involved, are strictly the business of the partners within the marriage, in both a moral and legal sense.
I say this is true in a moral sense, because for so long this country (and those countries primarily in Europe, which also uphold this particular social norm) has held that the privacy and sanctity of marriage was the darkest, thickest curtain around any person's beliefs, practices, and lifeways. We have the Establishment Clause, mandating that no particular religion be allowed to delimit the particular ways we can marry. We have the third and fourth Amendments, to keep us secure in our personal effects and our personal spaces. And more than that, we have social tradition that says more loudly than any law yet written has needed to, when I am alone with my wife, whomever that may be and however we may have consecrated that union, once established under law that she (or he) is my wife, nothing we do is anyone else's business, unless and until we plan or perpetrate a crime against others outside that most sacred, most private space.
We can only maintain the absoluteness of this inviolacy, the thickness of this curtain of privacy around the married home, if every married couple enjoys the same privacy. That is not only good logic, it is good common sense, and it is the primary reason for the Equal Protection Clause of the 14th Amendment; some states chose to disregard the rights of some persons within their borders, which were nonetheless persons and citizens within the United States, and as such, entitled to the same protections as everyone in every state. We put that in writing, even though it ought to have been clear already, to make it doubly clear: there is no place in the United States which is inviolate from the laws of the whole. There is no place less sacred, less protected by the respect and tradition of the whole society.
So what do we do with Proposition 8, and laws like it, when momentary majorities seek to pry open this curtain of sanctity and expose some marriages as vulnerable to scrutiny no other marriages are, when they seek to pry out of their midst, some who are undeserving of the full respect and protection of the laws? Some would argue (as I would) that no state, however united in its purpose, has any power to deny any portion of its citizens (however small or even on the face of it, odious a minority) the full protection of its laws, nor especially the full protection and weight of the laws and traditions of the whole United States. To be blunt, we went through this shit with Jim Crow; what lesson did we fail to goddamn learn when it came to discrimination, on however compelling or important a ground? (read: religious motive)
Allow me to argue for a moment, by analogy. Would it be okay if we prohibited, say, the marriage of races one to another, intruding on heterosexual couples' unions because their skins are of different color? Would it be wise, moral, and legally compelling if we changed the (arbitrarily, Washington, because I live here) state constitution to read that Mormons must not marry within state bounds, and that their marriages would not have the full weight of law if a couple who contracted marriage outside of the state, moved here? Would it be enshrined within grand legal tradition as the epitome of liberal culture, if we required all couples who marry to bear forth fruit from their union, that childbirth and child-rearing (as some have argued is the truest basis of marriage) became mandatory? Would it, then, be culturally and legally permissible (even required) to prevent women beyond childbearing age from marrying, whatever other circumstances obtained?
I would argue that all of these ideas are pure horseshit, yet every one of them has been the basis of US law or state law at one time or another. Some of them have been quite recently; others are still in litigation; still others are in the process of becoming law. Anti-miscegenation has gone the way of the dodo, and good riddance. Eugenics has bit the dust (though the idea is still fresh and clean in some minds.) Why not marriage between two persons of the same sex?
The main arguments are twofold: firstly, that society has no compelling requirement to recognize marriages which do not fulfill that fundamental duty of the family, that of providing a home for rearing children. I argue (as many other wiser souls have before me) that this idea is wrong in at last these two senses: first, that there is simply no reason to believe a same-sex couple cannot provide a home capable of rearing healthy children; and, second, that to limit the purpose of marriage to child-rearing disallows (or implies that we should disallow) single persons from rearing children and implies as well, that marriages which do not have child-rearing as a primary goal ought to be prohibited, such as between couples beyond child-bearing age and between couples with one or more partners who are incapable personally of bearing children.
Secondly, and even less persuasively, even if I were to believe that the fundamental purpose of societal recognition of marriage was to encourage successful child production and that couples who were not expected to be successful baby factories should therefore not be protected by society's explicit approval of their marriage, even in that extremity, I would still have a problem with believing the second argument, that there is a moral dimension within the sanctity of marriage, which requires that only certain types of marriages should be recognized as worthy of the special protection of the laws and customs of our society. The very certainty, which is to say specificity, of this argument in my eyes makes it suspect: by its very nature, it seeks to bound around some possible pairings (say, between men and women of a certain religion, skin color, or political affiliation) which are more (indeed, exclusively) deserving of the special consideration and respect which American society has heretofore exhibited for all marriages recognized and sanctified by a suitable authority, whether that authority be a church, synagogue, mosque, ship or plane captain, justice of the peace, or street-corner preacher licensed by the Church of Universal Truth, Sex, and Internets (CUTSI) last Wednesday afternoon.
I think the only way to be fair, and "fairness" in the sense of impartiality is a quality of law as important as fairness in the same sense is an important quality in a teacher's grading, an umpire's view of the strike zone, and in the price of a cup of Java at your local greasy spoon...is to recognize every marriage as equally valuable and equally protected, if anyone's marriage is to be valued and protected. There is simply no room for passion on behalf of (or against) someone in particular when it comes to the law; there can't be, or the rule of law is invalid and we have to come up with an entirely other social compact on which to conjoin our hands in society, because make no mistake: however much we may believe (correctly) that we need other people to survive, and however great a percentage of a society may have been born there, and die there, without ever having lived beyond its bounds, membership in a republic is voluntary. If you don't like it, you are free to go. If you don't like it, you are equally free to stay and complain. If you don't like complaining, you are equally free, as well, to ask others to change to suit you.
Where a society begins to grate against itself, is when some members who choose to be parts of it, wish it to be one way, and other members who choose to be parts of it, wish it to be another. This creates competition, friction, and sometimes results in long-term or permanent schism, sometimes into entirely different societies (see: German Principalities, Dutch Republican unification, British Civil Wars, American War for Independence.) More importantly, I would suggest, it often creates the desire for advantage: to compete more effectively than the "other" side of a disputed value, norm, or other aspect of civil society; in short, to win in a permanent (therefore unfair) way, over the competing antagonist. Many in the South believe (probably correctly) that the 13th, 14th, and 15th Amendments were measures designed to do just that: to unfairly and permanently settle the question of states' powers and the rights of black persons "against" them, to grind them under the liberal heel of the racially-integrating Republican North.
I believe that Prop 8 is just such a measure, and that it is equally likely to produce a permanent (or at least notably long-term) backlash in this country, because it is fundamentally and explicitly designed to be unfair to a certain group of persons. Whether or not they were united in favor of marrying before, gay citizens have been singled out as undeserving of equal protection of their marriages as are other types of citizens. All colors, both sexes, all religions, all socioeconomic classes of gay citizens are equally undeserving under this law. Only their sexual lifestyle which, for most of us once we marry, happens behind drawn curtains, is singled out as peculiarly unfit for that privacy which straights have fought one another over so many times in the past, and which for a while we as a society had decided, everyone could enjoy once ensconced in the sanctified thrall of socially and religiously sacrosanct union one to another. To draw that curtain back for one particular type of socially and religiously sacrosanct union is the sole goal of this change in the law, and I would suggest that is a particularly unfair and invidious change to the trusted tradition that, once I or my neighbor upstairs or my cousin's employee's pony gets himself hitched, nobody else gets to tell him what he can do with his wedded partner. And I could spend some time on counterexamples, of all the instances in which it really is fair and a great idea, to tell a fella what he can't do with his partner (have you quit beating your wife?) but all of that misses the point.
The bottom line is fairness. All of us who are born or naturalized in this country, are citizens of the United States, and of the State in which we reside. We all enjoy equal protection as citizens, of the laws of the United States, and of the State in which we reside. That is the fundamental agreement establishing our basis for becoming and remaining voluntary, equal members of this republic. It is fair.
Any singling-out, any exception to the rule of equal protection and equal answerability to the law, undermines the fundamental fairness which is the basis for our continued citizenship. And stupid laws like Prop 8 ignore fairness in the interest of "winning."
Which is, to my mind, a losing strategy, and I hope they do.
I am about to suggest that marriage is, in a strictly public sense, delimited by "...the intrinsic emotional, psychological, or sexual satisfaction which the relationship brings to the individuals involved." (Cere, Spring 2001) Any further goals or details, including almost any religious beliefs involved, are strictly the business of the partners within the marriage, in both a moral and legal sense.
I say this is true in a moral sense, because for so long this country (and those countries primarily in Europe, which also uphold this particular social norm) has held that the privacy and sanctity of marriage was the darkest, thickest curtain around any person's beliefs, practices, and lifeways. We have the Establishment Clause, mandating that no particular religion be allowed to delimit the particular ways we can marry. We have the third and fourth Amendments, to keep us secure in our personal effects and our personal spaces. And more than that, we have social tradition that says more loudly than any law yet written has needed to, when I am alone with my wife, whomever that may be and however we may have consecrated that union, once established under law that she (or he) is my wife, nothing we do is anyone else's business, unless and until we plan or perpetrate a crime against others outside that most sacred, most private space.
We can only maintain the absoluteness of this inviolacy, the thickness of this curtain of privacy around the married home, if every married couple enjoys the same privacy. That is not only good logic, it is good common sense, and it is the primary reason for the Equal Protection Clause of the 14th Amendment; some states chose to disregard the rights of some persons within their borders, which were nonetheless persons and citizens within the United States, and as such, entitled to the same protections as everyone in every state. We put that in writing, even though it ought to have been clear already, to make it doubly clear: there is no place in the United States which is inviolate from the laws of the whole. There is no place less sacred, less protected by the respect and tradition of the whole society.
So what do we do with Proposition 8, and laws like it, when momentary majorities seek to pry open this curtain of sanctity and expose some marriages as vulnerable to scrutiny no other marriages are, when they seek to pry out of their midst, some who are undeserving of the full respect and protection of the laws? Some would argue (as I would) that no state, however united in its purpose, has any power to deny any portion of its citizens (however small or even on the face of it, odious a minority) the full protection of its laws, nor especially the full protection and weight of the laws and traditions of the whole United States. To be blunt, we went through this shit with Jim Crow; what lesson did we fail to goddamn learn when it came to discrimination, on however compelling or important a ground? (read: religious motive)
Allow me to argue for a moment, by analogy. Would it be okay if we prohibited, say, the marriage of races one to another, intruding on heterosexual couples' unions because their skins are of different color? Would it be wise, moral, and legally compelling if we changed the (arbitrarily, Washington, because I live here) state constitution to read that Mormons must not marry within state bounds, and that their marriages would not have the full weight of law if a couple who contracted marriage outside of the state, moved here? Would it be enshrined within grand legal tradition as the epitome of liberal culture, if we required all couples who marry to bear forth fruit from their union, that childbirth and child-rearing (as some have argued is the truest basis of marriage) became mandatory? Would it, then, be culturally and legally permissible (even required) to prevent women beyond childbearing age from marrying, whatever other circumstances obtained?
I would argue that all of these ideas are pure horseshit, yet every one of them has been the basis of US law or state law at one time or another. Some of them have been quite recently; others are still in litigation; still others are in the process of becoming law. Anti-miscegenation has gone the way of the dodo, and good riddance. Eugenics has bit the dust (though the idea is still fresh and clean in some minds.) Why not marriage between two persons of the same sex?
The main arguments are twofold: firstly, that society has no compelling requirement to recognize marriages which do not fulfill that fundamental duty of the family, that of providing a home for rearing children. I argue (as many other wiser souls have before me) that this idea is wrong in at last these two senses: first, that there is simply no reason to believe a same-sex couple cannot provide a home capable of rearing healthy children; and, second, that to limit the purpose of marriage to child-rearing disallows (or implies that we should disallow) single persons from rearing children and implies as well, that marriages which do not have child-rearing as a primary goal ought to be prohibited, such as between couples beyond child-bearing age and between couples with one or more partners who are incapable personally of bearing children.
Secondly, and even less persuasively, even if I were to believe that the fundamental purpose of societal recognition of marriage was to encourage successful child production and that couples who were not expected to be successful baby factories should therefore not be protected by society's explicit approval of their marriage, even in that extremity, I would still have a problem with believing the second argument, that there is a moral dimension within the sanctity of marriage, which requires that only certain types of marriages should be recognized as worthy of the special protection of the laws and customs of our society. The very certainty, which is to say specificity, of this argument in my eyes makes it suspect: by its very nature, it seeks to bound around some possible pairings (say, between men and women of a certain religion, skin color, or political affiliation) which are more (indeed, exclusively) deserving of the special consideration and respect which American society has heretofore exhibited for all marriages recognized and sanctified by a suitable authority, whether that authority be a church, synagogue, mosque, ship or plane captain, justice of the peace, or street-corner preacher licensed by the Church of Universal Truth, Sex, and Internets (CUTSI) last Wednesday afternoon.
I think the only way to be fair, and "fairness" in the sense of impartiality is a quality of law as important as fairness in the same sense is an important quality in a teacher's grading, an umpire's view of the strike zone, and in the price of a cup of Java at your local greasy spoon...is to recognize every marriage as equally valuable and equally protected, if anyone's marriage is to be valued and protected. There is simply no room for passion on behalf of (or against) someone in particular when it comes to the law; there can't be, or the rule of law is invalid and we have to come up with an entirely other social compact on which to conjoin our hands in society, because make no mistake: however much we may believe (correctly) that we need other people to survive, and however great a percentage of a society may have been born there, and die there, without ever having lived beyond its bounds, membership in a republic is voluntary. If you don't like it, you are free to go. If you don't like it, you are equally free to stay and complain. If you don't like complaining, you are equally free, as well, to ask others to change to suit you.
Where a society begins to grate against itself, is when some members who choose to be parts of it, wish it to be one way, and other members who choose to be parts of it, wish it to be another. This creates competition, friction, and sometimes results in long-term or permanent schism, sometimes into entirely different societies (see: German Principalities, Dutch Republican unification, British Civil Wars, American War for Independence.) More importantly, I would suggest, it often creates the desire for advantage: to compete more effectively than the "other" side of a disputed value, norm, or other aspect of civil society; in short, to win in a permanent (therefore unfair) way, over the competing antagonist. Many in the South believe (probably correctly) that the 13th, 14th, and 15th Amendments were measures designed to do just that: to unfairly and permanently settle the question of states' powers and the rights of black persons "against" them, to grind them under the liberal heel of the racially-integrating Republican North.
I believe that Prop 8 is just such a measure, and that it is equally likely to produce a permanent (or at least notably long-term) backlash in this country, because it is fundamentally and explicitly designed to be unfair to a certain group of persons. Whether or not they were united in favor of marrying before, gay citizens have been singled out as undeserving of equal protection of their marriages as are other types of citizens. All colors, both sexes, all religions, all socioeconomic classes of gay citizens are equally undeserving under this law. Only their sexual lifestyle which, for most of us once we marry, happens behind drawn curtains, is singled out as peculiarly unfit for that privacy which straights have fought one another over so many times in the past, and which for a while we as a society had decided, everyone could enjoy once ensconced in the sanctified thrall of socially and religiously sacrosanct union one to another. To draw that curtain back for one particular type of socially and religiously sacrosanct union is the sole goal of this change in the law, and I would suggest that is a particularly unfair and invidious change to the trusted tradition that, once I or my neighbor upstairs or my cousin's employee's pony gets himself hitched, nobody else gets to tell him what he can do with his wedded partner. And I could spend some time on counterexamples, of all the instances in which it really is fair and a great idea, to tell a fella what he can't do with his partner (have you quit beating your wife?) but all of that misses the point.
The bottom line is fairness. All of us who are born or naturalized in this country, are citizens of the United States, and of the State in which we reside. We all enjoy equal protection as citizens, of the laws of the United States, and of the State in which we reside. That is the fundamental agreement establishing our basis for becoming and remaining voluntary, equal members of this republic. It is fair.
Any singling-out, any exception to the rule of equal protection and equal answerability to the law, undermines the fundamental fairness which is the basis for our continued citizenship. And stupid laws like Prop 8 ignore fairness in the interest of "winning."
Which is, to my mind, a losing strategy, and I hope they do.