Carrie Prejean famously declared that "opposite" marriage was best--and she has a lot of tradition supporting her stance (if not her English usage). But recently I've been reading and listening to lots of heated debate about the "right" of same-sex couples to marry.
Trust me, everyone: if I had a vote in this matter, it would definitely be in favor of legalizing gay marriage. But I am genuinely puzzled by the kind of reasoning that is being used in order to support such laws.
Because, you see, I simply don't believe that anyone has any inherent, natural "right" to anything at all. When Thomas Jefferson wrote those eloquent words about "inalienable rights," many learned people actually thought that certain natural laws were written (by a "Creator" of some sort) into the very structure of the universe. But Darwin demonstrated, pretty convincingly, that nothing is divinely granted to any creature--all apparent "order" has evolved from something else and is moving inexorably toward still another state. Thus, to claim, as do many of the gay marriage advocates, that "every adult has a natural right to marry whomever he/she chooses, regardless of sex," is just utter nonsense. In fact, this argument from "natural law" is every bit as loony as the arguments of the other side which are usually based on "biblical law."
Neither nature nor God grant marriage privileges: only societies do that. Indeed, marriage is the quintessential social institution--created by societies in order to guarantee that a particular "way of life" will renew and perpetuate itself. Not surprisingly, then, traditional marriage was primarily an "opposite sex" legal contract whereby one male and one (or more) female(s) committed themselves and their property to the propagation and proper rearing of children. "Proper rearing," of course, meant inculcating the children in the "way of life" approved and required by the society that sanctioned the marriage. Traditional marriage thus served to pass on both genes and memes.
I guess the point that I'm trying to make here is this: societies structure their marriage laws according to the benefits that they (the societies) expect marriage to provide to the common weal. And so, in ancient Egypt and in more recent Polynesia, sibling marriages were permitted--even encouraged--at least among the aristocracy, since a benefit accrued from guaranteeing the purity of rulers' bloodlines. Similarly, many societies have authorized marriages that 21st Century Americans might label "pedophilic"--mature men taking child brides and thereby neutralizing potentially dangerous rivalries between powerful families.
But everywhere, as far as I can determine, marriage laws were intended to legitimize and regulate child-bearing, child-rearing and wealth distribution. Nowhere were were they primarily a kind of social consecration of an emotional commitment between two individuals.
Oh, I'm sure that feelings and inclinations sometimes played a role in drawing up marriage contracts. And it's pretty clear that many (perhaps most) marriage partners in traditional societies ultimately came to love or at least cherish their partners. Indeed, the traditional words of the religious ceremony (as opposed to the legal contract) ask the contractors to pledge both love and fidelity to each other. In actual practice, though, traditional societies seemed to be largely indifferent to spousal love. As long as couples had children and cared for them properly, society generally allowed individuals (well, males at least) to find love and companionship wherever they wished.
Indeed, the medieval tradition of "courtly love" was actually posited on the quest for affection and companionship outside of marriage. And ancient Greece had clearly established conventions whereby mature males (married and fathers of children) entered into emotional and physical relationships with adolescent boys. But again, I return to a central idea: these customs were not, strictly speaking, "legal"--probably because they were largely personal and emotional matters, involving individuals and their feelings, but having little to do with the orderly functioning and preservation of the state.
Society just didn't care about according any special legal status to commitments between two people to love, support and have sex with each other.
Only when love and, especially, sex could be seen as having some impact on the social order did authority (God, government, etc.) intervene. A marginal desert tribe like Israel could scarcely perpetuate itself if males "wasted" their sperm on other males or on the ground. So taboos banning such practices were established and canonized in that particular society. Ancient Athens was apparently more confident that there was plenty of sperm to go around.
In any event, we can pretty much summarize by stating once again: traditional marriage legitimized the rearing of children and the distribution of property, not commitments of love and companionship.
But somewhere, in the course of the last 300 years, societies began to believe that the marriage contract was more a commitment to love a partner than it was to have children with that partner. In fact, it just occurs to me that--in 21st Century America--people are increasingly having children without even thinking about marriage. Whereas, on the other hand, these same breeders often don't want to commit themselves to marriage until they are quite certain that the partner they have chosen will continue to provide love for the remainder of life.
Why is this? Perhaps because, as society has evolved and become more sophisticated, many of the child-rearing and meme-perpetuating functions traditionally accomplished by marriage have been assumed by other institutions--most especially by schools (alma maters). We still need opposite-sex relations in order to produce children--but we really don't need marriages to rear them. (Oh, I will be vilified for this statement--but as a former teacher, I know that it is true.)
And so, what does society TODAY require in order to survive? It still requires opposite sex intercourse in order to conceive children, since we haven't yet figured out how to "decant" kids a la Brave New World. That's probably all Carrie Prejean was thinking about (if, indeed, she was thinking about anything at all). But child-rearing has become a secondary function of marriage: if parents don't take care of their kids, society itself will. And even child-bearing is no longer viewed as essential: most societies can perpetuate themselves quite nicely even if a large amount of sperm is simply "wasted" on love-making that has no reproductive goal. Childless marriages are just fine.
In other words, marriage simply isn't as important to society as it once was. But as it has lost its importance for society in general, it has acquired additional significance for individuals, since it is now seen as a kind of social acceptance of an emotional contract : society's "seal of approval" for the decision of two people to unite their lives and fortunes for their mutual well-being (whether or not children are involved).
Obviously, if this is our definition of marriage, it is no longer particularly significant whether the contractors are opposite-sex or same-sex. Indeed, if marriage is society's seal of approval for a commitment to love and share life and property, then it seems positively unfair to deny same-sex couples this social sanction.
Unfair, yes. But NOT against some kind of "natural" law. Merely against currently perceived norms, norms that have evolved over many centuries and that will continue to evolve. The primary criterion has always been, and will remain: what does society expect marriage to contribute to society?
This is why I am wary of efforts to base marriage law on any authority other than social norms as determined by legislatures, not courts. Just as "natural law" is silent about marriage, so, too, I think, is "constitutional law". The 14th Amendment ensures equality based on race and gender, but it's a stretch to see how gays can claim that "sexual orientation" is a "gender." In fact, the social conservatives are probably right when they say that a gay male has the same marriage rights as a straight male: he can marry any woman he pleases (except his sister, etc.). And society is simply not ready for a truly broad definition of marriage: i.e., "any consenting adult can marry any other consenting adult." We might indeed be prepared to extend this privilege to a gay couple. But we are certainly not ready to legitimize unions between siblings or between parents and their children. This disinclination has NOTHING to do with the Constitution. Rather, our society almost universally views such incestuous unions as detrimental to the common weal.
So we're back to that essential formula, then. The definition of marriage must be established by a kind of general consensus about what is good for society in general. Many societies have already legislated in favor of same sex marriage (Canada, Sweden, Holland) because, clearly, the citizenry in general views such unions as fundamentally beneficial. But America is always slower and more conservative than Europe and Canada. Hence, many Americans seem unwilling to wait for ordinary laws to be passed in the ordinary fashion. Rather, they want to discover some kind of "natural," "divine" or "constitutional" right--existing out there in the ether somewhere--to justify their personal viewpoints and impose these notions on a public which is not yet entirely free of Carrie Prejeans.
I think this is a very dangerous strategy which could lead to some decidedly unpleasant reactions and setbacks. Evolution cannot be imposed from on high. Just as there are no inalienable and self-evident rights, neither is there any outside authority that can change society by decree or judicial fiat. The Supreme Court simply legitimizes as "constitutional" what five-out-of-nine people figure the society in general wants or needs.
Let's wait for the legislatures. It's so frustrating--and so unfair--but genuine laws are the closest we'll ever get to "inalienability".
To my gay brothers and sisters in committed relationships (of the kind that I always yearned for but never achieved): I hope you'll soon be able to get married. Some additional patience--and less self-pity--may be required of you, but don't despair. I am confident that the Carrie Prejean view will eventually fade--not because anyone is inherently entitled to anything--but because Prejean's view is no longer particularly useful or relevant in 21st Century society.
Sorry it took me so long to express myself on this issue which, obviously, matters deeply to me. Please keep me on your list for a wedding invitation. I'll come if I'm still alive.