Marriage goes on trial in Hawaii this summer. More than thirty states have introduced bills to limit marriage to male-female couples. Congress is deliberating over a Defense of Marriage Act. The Supreme Court may have concluded that traditional sexual morality is “irrational,” “animus-based,” and unconstitutional. The debate about same-sex marriage has exploded across the American cultural and political landscape and is only likely to intensify.
Americans already are being inundated with competing rhetorics of family values versus civil rights, and with contrasting images of “traditional” families compared with same-sex “wedding” ceremonies. As the issue becomes packaged and repackaged in competing clusters of sound bites, the deeper questions may easily become overlooked.
There are many superficial cultural and legal questions that tend to occupy our attention. The latest studies investigate the lives of gay couples, the reported happiness of married couples, and recent attitudes toward adultery. TV and radio talk-show hosts hold debates on whether our current definition of marriage is discriminatory and whether homosexuals have a legal right to marry.
Yet underneath these questions lie much deeper ones, questions that some Americans have become quite unable to discuss—and which other Americans are quite eager to avoid: “What is marriage?” and “How do we make marriage laws if we don’t agree about what marriage is?”
What Is Marriage?
America today is embroiled in a conflict surrounding different definitions or models of marriage. The failure to identify this may account for how people talk past each other, not realizing their fundamental disagreements.
The first model, often described as traditional, I will call the Complementarity model. The focus of this model is institutional: it views marriage as a sexual community, in which the procreation and nurture of children are the defining purpose of marriage. This view assumes:
•we live in a universe with intrinsic purpose and order;
•human beings come in two sexes, male and female, who are ordered both to one another and to the creation of families;
•marriage is the fundamental social institution by which men and women unite their lives, establish families, and connect human communities across the generations;
•although marriage is created by neither church nor state, it may be blessed by one and recognized by the other;
•as a matter of justice, the moral right to marry, establish a family, and educate one’s children, should be embodied in positive legal rights.
The marriage laws of all fifty U.S. states are based on this model. Similar assumptions can be found in other legal systems, even those that recognize some form of “domestic partnerships.”
The second model of marriage, properly called liberal, I call the Choice model. It appears to be a unique creation of Western modernity. The focus of this model is individual: It views marriage as a sexual contract, in which pleasure or fulfillment is the defining purpose of marriage. It assumes:
•we live in a universe that individuals can define and control, in order to pursue their personal happiness;
•human beings have bodies, which provide them with options of pleasure, intimacy, and reproduction;
•marriage is a social institution historically linked to the domination of women by men, through procreation and the unequal distribution of personal and property rights;
•while religions may privately adopt their own definitions of marriage, the modern state should now treat it as a contract between autonomous individuals, in which the sex of the individual is legally irrelevant;
•as a matter of justice, the moral right to marry has to do with the equal rights of individuals to participate in state-defined benefits, rather than with family or children, and this view should be embodied in positive legal rights.
These assumptions are at the core of much of the Supreme Court’s contemporary privacy and liberty jurisprudence, which increasingly attaches rights to free-floating individuals disconnected from their social context.
We are also witnessing the emergence of a third, postmodern model of marriage. I call this the Commitment model, because it emphasizes “committed,” intimate relationships. The focus of this model is interpersonal: It views marriage as sexual companionship, in which partnership is the defining purpose of marriage. It appears to assume the following:
•we live in a universe that is socially constructed;
•human identity, including sexual identity, is socially constructed;
•marriage is the central institution in our society, which honors and encourages intimate and enduring commitments, and confers religious, cultural, and legal benefits;
•marriage is more than a contract between individuals, it is a tradition linking persons and the wider community;
•as a matter of justice, the moral right to marry, which is based on the right to participate fully in the community, should be available to all regardless of sex, and embodied in positive legal rights.
What can we learn from identifying these three models of marriage? Something crucial: each model involves a combination of philosophical, moral, and legal assumptions, which reflect fundamental beliefs about the nature of the universe. We cannot somehow lay aside our beliefs in order to arrive at a pragmatic answer to the question of how to define marriage.
Thus, any practical resolution of the same-sex marriage question will reflect one of these views—whatever it is. The views themselves are not the business of government, but they will inevitably shape the opinions of those who write the laws.
How Are We to Make Laws?
Our brief survey of these models suggests there is little likelihood of reconciliation among them. And, since these three models only make sense within an integrated set of beliefs, there are, accordingly, traditional, liberal, and postmodern approaches to the making of marriage law.
The traditional answer makes a distinction between public and private realms. It treats society as having at least three fundamental categories: individuals, civil society, and the state. A traditional legal regime, for instance, treats marriage as a fundamental institution of civil society, not merely as a codification of an interpersonal relationship, or as a contract between two individuals. It acknowledges that it is recognizing, not creating, marriage.
The liberal answer also makes a distinction between the public and private realms, but with a crucial difference: It puts the individual at the center of society, and treats all associations, including the state, as somehow derivative of the individual, and authoritative only insofar as they benefit individual interests.
The postmodern view is founded upon a particular view of pluralism. Postmoderns emphasize the plurality of “discourses,” and assert that no one “discourse” can actually be “true.” At most, we have socially constructed “traditions,” to be de- and reconstructed according to the perceived needs of a particular community.
Each approach makes judgments about truth (whether it admits this or not) and then proceeds to answer other questions about culture and law. What counts as “justice,” “equality,” or “discrimination” depends heavily upon each particular view of truth. Each approach also judges what it will endorse, and what it will tolerate. Each establishes a preferred view, while it seeks to accommodate those on different ground. In other words, each aims to be pluralistic.
The self-proclaimed gay and lesbian lobby has made it clear that the definition of marriage is the core of the issue—they do not want to broaden marriage, they want to redefine it. The debate about same-sex marriage, therefore, is a debate about marriage.
It also should be clear that the liberal and postmodern models of marriage are not creations of the gay and lesbian community. As more Americans have diluted or shifted their beliefs and moral values, the cultural definition of marriage has become unstable. This, more than anything, has opened the door to arguments for same-sex marriage.
Which model of marriage should guide our laws? If one adopts the Complementarity model, then the right to marry will be limited to male-female couples. If one adopts the Choice model, then the right to marry will be the possession of every individual, regardless of either partner’s sex. If one adopts the Commitment model, then the right to marry will be the possession of any couple willing to make a public declaration of their union, as it is defined by the larger community, embodied in the state.
Each model reflects assumptions about reality and society—traditional, liberal, or postmodern. Each has some support among the different communities of belief that make up contemporary America. Yet no regime can adopt all three models simultaneously. Marriage cannot be primarily an institution and primarily a relationship and primarily a contract between individuals all at the same time. So the real question is not whether one model should be preferred over another, but which model it should be, and why.
I find the traditional model compelling. Why? Because it coheres with my beliefs, experiences, opinions, and practices, which are based upon my fallible but honest attempt to know the truth. I believe we exist in a universe that has an order that provides guidance for our lives. Part of that order is the difference between men and women, which is woven deep within the fabric of their humanity. If this is true, it makes sense that there is a distinctive male-female community that unites those who are different and images the fullness of humanity.
It does not surprise me that such a community links past, present, and future, with its essential task of creating and educating the next generation. It also makes sense to me that people would seek, and find, fulfillment and mutuality within the framework of this marital community. If this community is so fundamental to human society, it also makes sense to me that religious communities would bless it, and governments recognize it. This, in fact, is what we find. Not entirely, to be sure, but for the most part; and in a world in which good and evil co-exist, “for the most part” is enough to make it compelling to me.
The traditional model is preferable to the liberal and postmodern models. It is preferable because it can subsume the insights of the liberal and postmodern models without redefining the meaning of marriage, whereas neither the liberal nor postmodern model can effectively incorporate the insights of the traditional model in the same way. The traditional model affirms the reality of sexual difference while recognizing both the importance of the individuals involved (the insight of the liberal model) and the importance of the marital relationship (the insight of the postmodern model).
Is it legitimate, in our constitutional system, to enact a specific model of marriage into law when there are different models of marriage? The best model of marriage to embody in positive law, democratically speaking, is that which reflects the beliefs, experiences, opinions, and traditions of the majority of citizens in a particular jurisdiction. In our society, which professes a belief in pluralism and tolerance, one of the criteria for the best model of marriage will be that model that also allows room for other, dissenting models. The choice of a model of marriage is a choice of the people, acting directly through a constitutional convention, or indirectly through their elected representatives. If unelected judges who prefer other models impose their favored policies on the people, they will jeopardize the legitimacy of our laws.
Which of these three models of marriage has been chosen by the American people? This is not a hard question to answer. The traditional model is the existing definition of marriage in every state. It is our official practice, adopted by democratic means.
In contrast, no state has yet adopted the liberal or postmodern model of marriage (although no-fault divorce could be seen as a move in this direction). Liberal and postmodern arguments that sexual difference is irrelevant or illusory can be heard in many places, to be sure, whether in the media, elite universities, or in nontraditional religious communities. But the majority of Americans still do not believe that where sex is concerned, “we’re all the same” or “everybody’s just an individual.” No court will convince them otherwise.
The traditional model represents the practical judgement of many generations that marriage has something to do with sex; that sex has something to do with sexual difference; and that sexual difference has something to do with children. They believe that it makes a difference whether children are raised by a mother and father together. They respect the heroic efforts of single parents in difficult circumstances, and they understand that children are being raised by same-sex couples. But they believe, deep down, that children need a mother and a father, both actively involved in their lives, to develop healthy sexual and emotional character.
Americans experience sexual difference as a reality, not an appearance, that exists amid the diversity of social customs. They acknowledge this reality in the way they raise children, organize social life, and structure public spaces. Americans from widely varying religious traditions, both Western and non-Western, affirm this in their communities of worship. Coming together as citizens, they have chosen to embody this reality in the special legal status they give to a man and a woman who are willing to become a total sexual community—lifelong, exclusive, and faithful. This ideal is embodied in our laws, even if many do not meet it.
For the sake of tolerance and pluralism, Americans are willing to accept the right of same-sex couples to live their private lives as they see fit. But they make a distinction between the institution that they publicly endorse (marriage) and individual behavior that they privately tolerate (various nonmarital sexual relationships). Ironically, by affirming the reality of civil society alongside individuals and the state, the traditional model makes greater room for diverse communities of belief and practice, and resists tendencies (either liberal or postmodern) toward state-enforced homogenization.
Where Do We Go from Here?
There is much creative intellectual work to be done. Once we understand the depths of the crisis we face, we can go to the roots of our own views, and articulate them more clearly. Then we must renew the jurisprudence of associations like marriage and apply it to constitutional law. Both disciplines are locked in a stalemate between individual rights and state interests, crippling the ability of legal theorists to do justice to the reality of so-called mediating structures. If we draw on the riches of ordinary human experience, it will be possible to rearticulate a cultural and legal understanding of marriage that can serve the eventual renewal of American life.
If this happens, once again we will have a language for talking about marriage and family as the foundation of civil society, distinct from religion and the state, though recognized by both. Individual rights claims concerning marriage could then be put into their proper context, rather than be used to redefine marriage. We will see a new blending of jurisprudence, common law, statutory law, constitutional law, and international human rights law, in which marriage as an institution is fully recognized in law as in life.
We must also be actively involved in the cultural and political competition that continues to rage. We do not have to wait for the theorists in order to participate in it. We need not be shy about explaining the foundation of our existing marriage laws, or our reasons for preferring the traditional model. Once decision-makers and the public see the deeper roots of the arguments for same-sex marriage, there is some chance they will recoil from the implications of redefining marriage.
Our defense of marriage flows not only from our faith, but stands in the great line of American social movements. With Dr. Martin Luther King Jr., we can affirm that “the arc of the universe is long, but it bends toward justice.” With the prophet Amos we can say, “Let justice roll down like waters, and righteousness like an everlasting stream.” If the liberal credo is “justice to individuals,” and the postmodern credo is “justice to relationships,” our credo is “justice to institutions”—starting with marriage. We have come to a defining moment. Our message to the state is crisp and clear: You are not God. Do justice to marriage.