In 1989, most Americans had never even heard of gay marriage, and certainly couldn’t conceive that it would one day be legalized by popular vote. That year, Andrew Sullivan wrote a landmark essay for the New Republic, “Here Comes the Groom: A (Conservative) Case for Gay Marriage.” Sullivan’s essay is one of the most important magazine articles of recent decades. His argument, which he went on to elaborate in his books Virtually Normaland Same-Sex Marriageand in later essays, is that marriage for gays would “foster social cohesion, emotional security, and economic prudence.” Sullivan’s conservative case would eventually become the intellectual and moral foundation of the campaigns to legalize gay marriage. Sullivan gave Slatepermission to reprint his New Republic essay in full.
Last month in New York, a court ruled that a gay lover had the right to stay in his deceased partner's rent-control apartment because the lover qualified as a member of the deceased's family. The ruling deftly annoyed almost everybody. Conservatives saw judicial activism in favor of gay rent control: three reasons to be appalled. Chastened liberals (such as the New York Times editorial page), while endorsing the recognition of gay relationships, also worried about the abuse of already stretched entitlements that the ruling threatened. What neither side quite contemplated is that they both might be right, and that the way to tackle the issue of unconventional relationships in conventional society is to try something both more radical and more conservative than putting courts in the business of deciding what is and is not a family. That alternative is the legalization of civil gay marriage.
The New York rent-control case did not go anywhere near that far, which is the problem. The rent-control regulations merely stipulated that a "family" member had the right to remain in the apartment. The judge ruled that to all intents and purposes a gay lover is part of his lover's family, inasmuch as a "family" merely means an interwoven social life, emotional commitment, and some level of financial interdependence.
It's principle now well established around the country. Several cities have “domestic partnership” laws, which allow relationships that do not fit into the category of heterosexual marriage to be registered with the city and qualify for benefits that up till now have been reserved for straight married couples. San Francisco, Berkeley, Madison, and Los Angeles all have legislation, as does the politically correct Washington, D.C., suburb, Takoma Park. In these cities, a variety of interpersonal arrangements qualify for health insurance, bereavement leave, insurance, annuity and pension rights, housing rights (such as rent-control apartments), adoption and inheritance rights. Eventually, accordng to gay lobby groups, the aim is to include federal income tax and veterans' benefits as well. A recent case even involved the right to use a family member's accumulated frequent-flier points. Gays are not the only beneficiaries; heterosexual "live-togethers" also qualify.
There's an argument, of course, that the current legal advantages extended to married people unfairly discriminate against people who've shaped their lives in less conventional arrangements. But it doesn't take a genius to see that enshrining in the law a vague principle like “domestic partnership” is an invitation to qualify at little personal cost for a vast array of entitlements otherwise kept crudely under control.
To be sure, potential DPs have to prove financial interdependence, shared living arrangements, and a commitment to mutual caring. But they don't need to have a sexual relationship or even closely mirror old-style marriage. In principle, an elderly woman and her live-in nurse could qualify. A couple of uneuphemistically confirmed bachelors could be DPs. So could two close college students, a pair of seminarians, or a couple of frat buddies. Left as it is, the concept of domestic partnership could open a Pandora's box of litigation and subjective judicial decision-making about who qualifies. You either are or are not married; it's not a complex question. Whether you are in a "domestic partnership" is not so clear.
More important, the concept of domestic partnership chips away at the prestige of traditional relationships and undermines the priority we give them. This priority is not necessarily a product of heterosexism. Consider heterosexual couples. Society has good reason to extend legal advantages to heterosexuals who choose the formal sanction of marriage over simply living together. They make a deeper commitment to one another and to society; in exchange, society extends certain benefits to them. Marriage provides an anchor, if an arbitrary and weak one, in the chaos of sex and relationships to which we are all prone. It provides a mechanism for emotional stability, economic security, and the healthy rearing of the next generation. We rig the law in its favor not because we disparage all forms of relationship other than the nuclear family, but because we recognize that not to promote marriage would be to ask too much of human virtue. In the context of the weakened family's effect upon the poor, it might also invite social disintegration. One of the worst products of the New Right's "family values" campaign is that its extremism and hatred of diversity has disguised this more measured and more convincing case for the importance of the marital bond.
The concept of domestic partnership ignores these concerns, indeed directly attacks them. This is a pity, since one of its most important objectives—providing some civil recognition for gay relationships—is a noble cause and one completely compatible with the defense of the family. But the way to go about it is not to undermine straight marriage; it is to legalize old-style marriage for gays.
The gay movement has ducked this issue primarily out of fear of division. Much of the gay leadership clings to notions of gay life as essentially outsider, anti-bourgeois, radical. Marriage, for them, is co-optation into straight society. For the Stonewall generation, it is hard to see how this vision of conflict will ever fundamentally change. But for many other gays—my guess, a majority—while they don't deny the importance of rebellion 20 years ago and are grateful for what was done, there's now the sense of a new opportunity. A need to rebel has quietly ceded to a desire to belong. To be gay and to be bourgeois no longer seems such an absurd proposition. Certainly since AIDS, to be gay and to be responsible has become a necessity.
Gay marriage squares several circles at the heart of the domestic partnership debate. Unlike domestic partnership, it allows for recognition of gay relationships, while casting no aspersions on traditional marriage. It merely asks that gays be allowed to join in. Unlike domestic partnership, it doesn't open up avenues for heterosexuals to get benefits without the responsibilities of marriage, or a nightmare of definitional litigation. And unlike domestic partnership, it harnesses to an already established social convention the yearnings for stability and acceptance among a fast-maturing gay community.
Gay marriage also places more responsibilities upon gays; it says for the first time that gay relationships are not better or worse than straight relationships, and that the same is expected of them. And it's clear and dignified. There's a legal benefit to a clear, common symbol of commitment. There's also a personal benefit. One of the ironies of domestic partnership is that it's not only more complicated than marriage, it's more demanding, requiring an elaborate statement of intent to qualify. It amounts to a substantial invasion of privacy. Why, after all, should gays be required to prove commitment before they get married in a way we would never dream of asking of straights?
Legalizing gay marriage would offer homosexuals the same deal society now offers heterosexuals: general social approval and specific legal advantages in exchange for a deeper and harder-to-extract-yourself-from commitment to another human being. Like straight marriage, it would foster social cohesion, emotional security, and economic prudence. Since there's no reason gays should not be allowed to adopt or be foster parents, it could also help nurture children. And its introduction would not be some sort of radical break with social custom. As it has become more acceptable for gay people to acknowledge their loves publicly, more and more have committed themselves to one another for life in full view of their families and their friends. A law institutionalizing gay marriage would merely reinforce a healthy social trend. It would also, in the wake of AIDS, qualify as a genuine public health measure. Those conservatives who deplore promiscuity among some homosexuals should be among the first to support it. Burke could have written a powerful case for it.
The argument that gay marriage would subtly undermine the unique legitimacy of straight marriage is based upon a fallacy. For heterosexuals, straight marriage would remain the most significant--and only legal social bond. Gay marriage could only delegitimize straight marriage if it were a real alternative to it, and this is clearly not true. To put it bluntly, there's precious little evidence that straights could be persuaded by any law to have sex with–let alone marry—someone of their own sex. The only possible effect of this sort would be to persuade gay men and women who force themselves into heterosexual marriage (often at appalling cost to themselves and their families) to find a focus for their family instincts in a more personally positive environment. But this is clearly a plus, not a minus: gay marriage could both avoid a lot of tortured families and create the possibility for many happier ones. It is not, in short, a denial of family values. It's an extension of them.
Of course, some would claim that any legal recognition of homosexuality is a de facto attack upon heterosexuality. But even the most hardened conservatives recognize that gays are a permanent minority and aren't likely to go away. Since persecution is not an option in a civilized society, why not coax gays into traditional values rather than rail incoherently against them?
There's a less elaborate argument for gay marriage: it's good for gays. It provides role models for young gay people who, after the exhilaration of coming out, can easily lapse into short-term relationships and insecurity with no tangible goal in sight. My own guess is that most gays would embrace such a goal with as much (if not more) commitment as straights. Even in our society as it is, many lesbian relationships are virtual textbook cases of monogamous commitment. Legal gay marriage could also help bridge the gulf often found between gays and their parents. It could bring the essence of gay life–a gay couple—into the heart of the traditional straight family in a way the family can most understand and the gay offspring can most easily acknowledge. It could do as much to heal the gay-straight rift as any amount of gay rights legislation.
If these arguments sound socially conservative, that's no accident. It's one of the richest ironies of our society's blind spot toward gays that essentially conservative social goals should have the appearance of being so radical. But gay marriage is not a radical step. It avoids the mess of domestic partnership; it is humane; it is conservative in the best sense of the word. It's also about relationships. Given that gay relationships will always exist, what possible social goal is advanced by framing the law to encourage those relationships to be unfaithful, undeveloped, and insecure?
John Ozolins is Professor of Philosophy in the Faculty of Theology and Philosophy at the Australian Catholic University.
The main argument put forward in favour of altering the definition of marriage as being between a man and woman is that this discriminates against relationships between individuals of the same sex and hence constitutes a violation of their right to have their relationship recognised as having equal value.
In short, the argument is that it devalues their love.
The question I want to examine is whether this is a sound argument.
One way of encapsulating the logical form of the argument is the following:
- All love between all persons is equal (Assumption - that is, an assertion that is taken as given).
- Love is recognised through marriage (Assumption).
- Marriage is a human right (Assumption).
- Human rights apply to all human beings (Assumption).
- Marriage is a human right of all human beings (from 3 and 4).
- Love between gay individuals is equal to other forms of love (from 1).
- Love between gay individuals is recognised through marriage (from 2 and 6).
- Marriage between gay individuals is a human right (from 5 and 7).
The question now becomes one of determining whether the argument is sound, since it appears to be a valid argument - that is, assuming the premises from which it begins are true, the conclusion is true. On the other hand, if any of the premises are false, then the conclusion is false, though the argument is still valid (since the form of the argument is valid). It is another matter whether the argument is sound. It is not sound if any of the premises are false, since the conclusion will not be true.
Premise 1: All love is equal
This premise is false. Love takes many different forms. There is: (i) romantic love, including erotic, intimate love; (ii) there is agape, or Platonic love, the love between friends, altruistic love, love parents have for their children and vice versa; (iii) there is love of truth, beauty and wisdom; (iv) love of God.
Each of these is different and will be of different intensities. It makes no sense to say that romantic love is equal to Platonic love or the love between friends. We need to ask what we mean by "equal" here. It cannot mean the same, since it is obvious that these forms of love are not the same. Nor is it the case that we love all individuals equally or with the same intensity or degree at the same time.
Equal cannot mean to the same intensity or degree. Neither can it mean that all love is to be equally respected, since we make distinctions between kinds of love. The love of neighbour, for instance, will not be of the same quality as love of one's children or those to whom we owe a duty of care. Respect, in fact, demands that we observe the distinctions between different kinds of love. The kind of respect we show will depend on the kind of love we are distinguishing. It will not be the same. The premise needs to be modified, since all love is not equal in any obvious way.
Premise 1': All romantic love is equal
The argument is now that the romantic love between a homosexual couple is the same as that between a heterosexual couple. Romantic love here is taken to mean the kind of intimate love that is expressed through sexual relations.
Without taking away from the positives that there are in a faithful monogamous, homosexual union, there is, in a heterosexual union, apart from obvious social, phenomenological and physical differences, one very important and fundamental distinction. The love between a man and a woman has the possibility of not just intimacy but also of the procreation of life. This is a fundamental element in the relationship between a man and woman that is not available to same-sex relationships. The latter are intrinsically barren and hence cannot be life giving.
In the case of the heterosexual couple there is a vast industry devoted to preventing pregnancy just so the sexual activity through which romantic love can be expressed can take place without the need for any responsibility to be taken or commitments made should a pregnancy result. Ironically, the contraceptive industry is engaged in rendering heterosexual unions as barren as homosexual ones. Even so, this does not make them the same. Methods to prevent pregnancy are not required for homosexual couples. Premise 1' does not save the argument.
A counter-objection that is often put is the following: Many marriages between men and women are also not procreative, since one or both of the partners is infertile. This could be because of a number of factors - age of the couple, for instance. Does not this mean it is as intrinsically barren as a relationship between a gay couple and hence there is no difference between an infertile heterosexual couple and gay couple?
It does not follow. It is not possible to argue from a particular exception to the general rule to a new general conclusion. This is the fallacy of composition. It is like arguing that the function of a cupboard is the same as a refrigerator because some refrigerators don't work, but can be used to store things, so it is the same as a cupboard. Because a particular relationship is unable to function normally - that is, with all the functions intrinsic to that relationship - does not as a result confer the same status on a relationship that by its nature cannot possibly be open to any of those functions. In the case of a homosexual relationship it is not open to procreation. This is a deep and unbridgeable divide.
Other points in response to counter-objections are: (i) many infertile couples seek assistance in remedying their infertility - this is impossible for a gay couple; (ii) surrogacy as a solution to gay infertility- this does not change the fundamental position. It does not change the fact that the gay couple is still infertile, though here it is granted that similarly the infertile heterosexual couple also remains infertile where the use of a surrogate is sought.
In any case, surrogacy brings other serious problems, not least of which is the introduction of a third party into what is meant to be an exclusive relationship. There is also the use of a woman as means to an end, violating the respect due to her as a human being. She is treated as merely a baby incubator with no emotional attachment to the child she is bearing. Her motherhood is disrespected. This is not changed by paying her well - indeed, could be seen as a further devaluing of her and of motherhood, as it reduces the respect due to her to no more than the sum of money. A similar argument could be mounted, in the case of a lesbian couple, using a man as a means to an end. Fatherhood is similarly demeaned and reduced to the supply of sperm.
Reproductive technology does nothing to alter the fundamental situation of infertility and requires third parties (that is, reproductive scientists) to facilitate reproduction. For heterosexual couples with infertility problems the resort to either assisted reproductive technology or surrogacy is the exception, whereas for homosexual couples it is the only way in which they can have children. Their relationship per se cannot be open to procreation. That technology could one day make it possible for a man to bear a child does not change the situation, since it would only be possible through the interventions of reproductive technology. It does not render the homosexual relationship the same as the heterosexual one.
Premise 2 is also clearly false, as stated. If love takes different forms, as indicated, then it is not all recognised through marriage. Children don't marry their parents and altruistic love does not require marriage. The premise would need to be re-stated: (premise 2') Some love is recognised through marriage. The question then becomes one of which love is so recognised and why. Traditionally it has been the love between a man and a woman, which is not just romantic love, but a deeper love which includes the love of friendship and one which foresees the possibility of that love bearing fruit. It is this kind of love that is recognised through marriage. It requires a further argument to say why this should be so, but for the moment, the argument as stated does not support the conclusion of the above argument, namely that marriage is to be extended to gay couples. One reason for proposing that love which has the natural possibility of bearing fruit is to be valued very highly is that it enables the renewal of the state. Homosexual relationships do not renew the state in this crucial way, however else they might contribute.
Assumption 3: Marriage is a human right
Certainly, the UN Declaration of Human Rights (UNHDR) asserts that human beings have the right to form families, so to that extent it can be argued that being able to marry and to form families is a human right. The UN charter, however, is couched in terms of marriage being a right for men and women to form families. It cannot be stretched to include same-sex couples, since by their nature they are incapable of forming families.
It is another matter whether there is a right for gay couples to enter in some kind of permanent union analogous to marriage, but this is not what this assumption asserts. It is about marriage. That some gay couples nurture children and hence form families does not mean that by their nature they are capable of forming a family. The genesis of their families involves the opposite sex in some way, either by way of sperm donation or surrogacy. So by their nature, that is, the kind of union that they have, it cannot form families. They will always be dependent on others to originate their families. Whether they can raise them as well (or as badly) as any heterosexual couple is not relevant here.
With these constraints, assumption 3 can be accepted, but it is a human right that is limited to those human beings who form heterologous unions - which is to say, are unions between male and female. Marriage is a human right, but as envisaged in the UNDHR it is understood as being between a man and a woman.
This is, of course, what is contested by the marriage equality campaigner - namely, what is being sought is a re-definition of marriage. This is not, however, a question of equality. The demand to re-define marriage assumes that marriage is a matter of definition, but this is not so, since marriage arises out of a description of the natural order - that is, the facts of human biology and evolution. If human beings were naturally inclined to form homosexual unions then, over time, they would have become extinct. The survival of the human race and, hence, of the state depends on men and women having children and forming families, not on homosexual unions. Water is H2O and not CH3CH2OH, which is ethanol, though both are liquids. We cannot re-define CH3CH2OH as water since it has a different structure. A union of male and female has a different structure from a homosexual union.
Marriage is a human right, but marriage is between a man and a woman. The attempt to redefine marriage as between any two (or perhaps more) persons devalues the importance of the categories of male and female and proposes that all intimate loving relationships are the same. This is self-evidently false. Marriage is a human right, but it is reserved for heterosexual relationships since it is through the very nature of such relationships that families can be formed.
Assumption 4: Human rights apply to all human beings
The applicability of human rights to all human beings can be accepted. Human rights apply to all human beings regardless of sexual orientation. It also means that human rights don't apply in a special, altered way to particular groups. Hence, if marriage is between a man and a woman, and all adult human persons can enter into marriage, those who want homosexual unions to be recognised as marriage are arguing that this human right has to apply to them in an altered form. It is not then the same human right. The assumption states that the same human rights apply to all human beings, not selectively altered to suit special groups.
In terms of the truth of , it follows that if  and  are true then so will . As I've already indicated,  has applicability only a certain sense, and hence  will only be true in a limited way, since  is limited.
 is false if  is false. It then follows that  is false, which means  is also false.
The conclusion that we reach is that the argument for claiming that prima facie gay unions are being discriminated against by being denied the same status as heterosexual unions fails, since the premises on which the argument is based on are false.
The argument for marriage equality can only work if it is accepted that gay unions are of the same species (or kind) as heterosexual unions and hence it is discriminatory to reserve marriage exclusively to heterosexual unions. From a metaphysical point of view, this requires us to understand what enables something to be considered of the same species. It is clear that this involves having the same kinds of essential characteristics. A homosexual union is of a different species to a heterosexual union, since it necessarily involves a union of a same-sex couple, while a heterosexual union involves the union of a male and female couple.
As we have already argued, a heterosexual union is of the kind which is normally open to the advent of children through the procreative act, in order to form a family. The institution of marriage is established to support the family in its raising of children, who are the future of the community. This is not simply a quirk of definition, but names an essential feature of the community and of the state. Changing a definition does not change this fundamental reality, but has the potential to be destructive of the basis for society, since it fails to respect the natural order of life and its propagation. It fails to appreciate the importance of the roles of father and mother in the nurturing of children, proposing that there is nothing noteworthy about the nuclear family that is worth protecting and preserving.
If the nuclear family is a human good worth protecting, it is the responsibility of all members of society to do so, including homosexual members of the community. An extension of this is upholding the institution of marriage as between and man and a woman. This does not imply repudiating their own committed unions, nor where the exigencies of life require it, raising children.
A homosexual union is not of the same species as a heterosexual union. There is no fudging this point. It follows that such unions are not the same as marriage and the question of equal treatment does not arise. It follows that there is no injustice in rejecting the proposed re-definition of marriage. It might be added that neither are de facto relationships between male and female equal to marriage either, but there is no injustice in denying that such relationships are the same as marriage, even if they have a great deal in common with those who are married.
Likewise, there is no injustice in recognising that a homosexual union can be a committed one in much the same way as a heterosexual one without proposing that there is injustice in treating one relationship as different from the other.
The assertion of equal recognition of homosexual unions and marriage between a man and a woman assumes that the relationships are the same. If they were, then clearly there would be no reason to discriminate between unions, but as argued, they are not, so the demand for equal recognition - of gay unions as equivalent to marriage - is not based on sound argument. This does not entail that some form of recognition of gay unions ought not be possible, but to call such unions marriage is a category mistake - they are, as explained, of different species because they differ in their fundamental structure.
John Ozolins is Professor of Philosophy in the Faculty of Theology and Philosophy at the Australian Catholic University.