Tuesday, July 27, 2010

Marriage: Why and Who?

The debate over same-sex marriage should turn on why the institution exists at all.  No, it’s not procreation.  So don’t start with the “Why do we let old heteros marry?”  Marriage may be good for kids, but it’s not about kids.  Marriage – traditional western marriage, anyway – is about specialization. 

People once thought, rightly or wrongly, that men and women should play different social roles.  The man’s role was provider/protector.  The woman’s role was homemaker/nurturer.  One can speculate that the female’s biologically limited ability to produce children (relative to a man’s virtually unlimited ability to do so) made women the more important sex to protect, and that everything followed from that.  But for whatever reason, gender roles have existed for a very long time.

An important aspect of specialization is socialization.  Where gender specialization is the norm, boys train to behave as men and girls to behave as women.  They arrive, then, in adulthood, with skills and attitudes appropriate to their roles.  It is this specialization, not the care of kids per se, that marriage was created to support.  Obviously, not all straight men and women have marched to the beat of the same drum, but institutions like marriage are not about outliers.  Cars exist to take us places; that they cannot take us everywhere or that not everyone needs one says nothing about why cars exist or even about why everyone who owns one owns it.

The historic allocation of gender roles put women at risk.  A man without a wife can support and protect himself, but a woman without a provider/protector is in trouble.  No wonder, then, that feminists find the arrangement unacceptable.  Because gender specialization creates unequal burdens, we should expect it to last only for as long as it’s necessary.  As societies and technologies mature, women become less dependent on a husband’s protection to preserve their child-bearing abilities.  Moreover, although a complementary marriage offers its one earner the competitive advantage of a home-based support system, if the economy can offer plentiful, safe, paid work, a second income is often a better economic choice.  And so, specialization gives way to “liberation.” 

I’m not taking sides on whether this turn of events is a good thing or a bad thing; it seems to me to have  been inevitable, so what would be the point?  Arguments can be offered for or against specialization and for or against traditional marriage in aid of specialization. My own sense is that specialization is too unfair to women to persist in a world where many jobs are safe and the brigands are under control.  If the “Leave it to Beaver” family is “better” for kids, it’s not perceived to be enough better to retain the old model.   (Of course, should it turn out that the economy cannot offer plentiful, safe, paid work to enough people, we may need to rethink the family business model yet again.)

The question for now, though, is this: if the sexes no longer specialize, what’s left for marriage to do?  Absent complementarity, marriage gets you a date every Saturday night, someone to visit you in the hospital, and someone to help with the kids.  None of these things requires the state’s intervention or merits its support.  Why should the state provide tax benefits or enforce support or inheritance rights just so that two lovers can hang out?  Let them sign a contract, ask the blessings of their God if they have one, and get on with their lives. 

Marriage is still very special to the participants, who love each other and commit to each other.  But the message, at least in liberal circles, has changed.  The vows have been neutered, fathers no longer “give away” daughters, and I’ve seen Jewish weddings where the bride and groom both break the glass at the end lest the groom’s doing it alone say something – God only knows what – about the relationship.  Instead of being about specialization, marriage is now about love.  That’s a good thing for something to be about, but is it something for the state to pay any attention to?

This post-specialization relationship, still called “marriage,” with its no-longer-warranted legal consequences, is what same-sex couples now seek to enter.  I understand why adherents to traditional marriage oppose the idea.  Marriage, to them, is still a commitment between specialists who love each other to specialize for their exclusive mutual benefit.  They want the ritual into which they have entered to mean what they understand it to mean, for if it does not have that meaning for society, not only is the message they want to send to their community by entering into it is lost, so is the certainty that each partner understands what he or she is doing.  For at least some religious people, marriage is a sacrament, and to change its nature is to make it no longer one.  I’m not religious enough to know what that feels like, but I’m sure it matters a lot to the people to whom it matters at all.

For heteros who have accepted the modern notion of marriage as a partnership of unspecialized lovers, same-sex marriage is just like their own, so it’s fine with them.  But, these couples have no dog in the fight.  The battle is between homosexual couples, who want the same opportunity as straights to ritualize their commitment to love, and traditionalists who want to be able to ritualize their loving commitment to specialization.  They both can’t have their way, because both are concerned about what marriage “says” about them, and it can only “speak” in one language – the language of the “audience.”  If the polity recognizes homosexual marriage, then marriage signals a commitment to love.  If the polity does not recognize homosexual marriage, then marriage can still signal a commitment to specialize. 

The problem for the traditionalists is that they are defending what may be only a logical possibility.  If same-sex marriage is recognized, marriage cannot be about specialization; if it is not recognized, then marriage can be about specialization, but that does not mean that it is perceived to be so by the community at large.  Once the dominant mode of hetero marriage is the commitment to love, marriage no longer sends the message of a commitment to specialize, even if only heteros are allowed to do it.  So, to the extent that shift has occurred, the traditionalists have lost the war, and same-sex marriage should be allowed.  Politics is about such things as when an inflection point in perceptions of this sort has incurred, and the political process should be the place that the battle is fought. 

I do not see a Federal Constitutional right to same-sex marriage, at least not yet.  Supporting sex-based specialization within its borders seems to me something a state ought to be able to do.  I recognize how much such legal support looks like anti-miscegenation law, but looks can be deceiving.  Race-based “specialization” (aka slavery and discrimination) and sex-based specialization have very different histories and political consequences.  We have a national consensus on the former.  Should one emerge on the latter, the political system will address it. 

That consensus may even be expressed through public acceptance of a Supreme Court decision that there is a Constitutional right to same-sex marriage, although the legal niceties of such a decision seem to me mind-boggling.  The jurisprudentially correct way of applying such a right would, I think, be a holding that hetero-only marriage laws discriminate against gays and so hetero-only marriage laws are unconstitutional.  In such a case, the Court would not tell a state whom it must permit to marry, because the Court would then have to say what “marriage” entails.  Rather, the Court would tell the states that it may not marry anyone if it will not marry same-sex couples.  What the states do about that order would be up to them, but, in the meantime, the validity of all hetero marriages in hetero-only states would be suspect.  I just don’t see the Court opening that can of worms.


  1. Judge Vaughn's opinion in Perry v. Schwarzenegger came out today. I think the opinion is circular. As I understand it, the only difference that the court finds between marriage and civil union is the social status conferred by the designations. He has, therefore, ordered that same-sex couples be given the legal status of "married" so that they will have the social status of "married." To do this, he must strike down a statute that says, in effect, that same-sex couples should be denied the legal status of "married" precisely because society does not yet recognize their relationship as conferring the social status accorded the mariage of opposite-sex couples. The judge seems to be saying that the people who don't think of same-sex unions as marriages will think of them as marriages if the judge requires that they be called marriages.

    Makes me think of that little town on the border between Poland and Russia that, after centuries of being part of Russia was finally ceded to Poland. When asked for a comment on the development, one resident said "well, at least we won't have to put up with any more of those horrible Russian winters." Judge Vaughn has not only legislated from the bench, he has legislated mores in an opinion that says that the problem with Prop 8 is that it legislates mores.

  2. Postscript 2. The "evidence" presented by the opponents of Prop 8 reminds me of claims by Republicans that the first Obama stimulus bill was a failure weeks after it passed because the economy had not yet recovered. If you ask the right wrong question, you can be pretty sure of getting a satisfactory meaningless answer.

    Judge Vaughan seems to believe that we can know in less than a generation of limited same-sex child-rearing that "children" do as well with two gay parents as two straight ones. Not only does it seem a tad early to be making this call - what sort parents, for example, will these kids be? - but, more fundamentally, it simply asks the wrong question.

    If, as I believe, the purpose of heterosexual marriage is to enable children to specialize in their gender roles, the evidence produced at the trial has absolutely no bearing on the effects of permitting same-sex marriage. I did not see any evidence presented at trial about the extent to which children of gay couples specialized in their gender roles as children. All the evidence was about how "well" they do, which is certainly relevant - if they were becoming sociopaths, that would, indeed be worth knowing - but it is hardly the question that bears on the most socially relevant issue raised by same-sex marriage, which is what the children are raised to become.

    The defenders of Prop 8 may be faulted for not raising these issues, but I'm not sure they had a choice. As Judge Vaughn noted, California has already neutered its marriage statutes to remove any hint of support for specialization. Thus, the legal arrangement called "marriage" in California no longer purports to enable specialized socialization, so evidence that it does in fact to do so might well be deemed irrelevant in court. The silliness of the evidence, however, suggests that the whole evidentiary search was a fiction intended to make what was essentially judicial notice of social mores look like a finding of fact.

    It is also a shame that Judge Vaughn is gay. I'm not saying that a gay judge should be disqualified from deciding cases about gay rights. I'm saying that public acceptance of this sort of decree is relevant to its becoming permanent law, and public acceptance is less likely if much of the public, rightly or wrongly, believes that the judge had a specific bias in the case.

  3. Make that Judge (Vaughn) Walker. Sorry. I can't edit comments, but I may move my comments into a separate post to clean this up.


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