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November 23, 2004

Sullivan Argues for the FMA

Advocates of same-sex marriage have a thin beam on which to balance. On one hand, they have to argue in such a way as to leave the path through the courts — the only currently viable route for their cause — both practically and rhetorically open. On the other hand, they have to allay fears of precisely that path in order to prevent the courts from being restrained. This makes for some stunning reversals.

For the case in point, begin with Allan Carlson's Family Research Council piece on the link between marriage and procreation. Carlson traces the connection, historically, back to the days of the Roman Empire's decline; theologically, he traces it through the New Testament back into the very foundation of Judeo-Christian religious tradition. He then examines the factors that have contributed to its decline and offers some strategies for reinvigorating it. How do you suppose somebody like, say, Andrew Sullivan might respond to such a piece?

Well, as it happens, Sullivan responded by making the case for the Federal Marriage Amendment (emphasis Sullivan's):

The basic problem for the anti-gay marriage forces is that they are upholding a marital standard for gays that no one any longer upholds for straights. And this obvious inequality - recognized even by Scalia, for example - cannot withstand judicial scrutiny under any reasonable standard of equal treatment under the law. Thats why I think it's hyperbole to describe the Massachusetts court of judicial "activism." The argument of the Commonwealth of Massachusetts was that gays couldn't marry because they couldn't procreate. Once it was obvious that this standard did not apply to heterosexuals, the court had no choice but to strike down the inequality. It was not a radical decision at all. It was an inescapable one.

Before I address the larger gap in Sullivan's thinking, I should note that my disagreement about the decision's inescapability highlights a more limited gap. When Carlson suggests that it is no longer possible to "defend the purpose of marriage as procreation... in the current constitutional climate," it is a practical, strategic judgment of the judiciary's disposition: "Mere words—even of a new amendment—are unlikely to contain these 'penumbras' and 'emanations.'"

In that skeptical paragraph, Carlson is addressing "the right of privacy" — the more fundamental detriment to the linkage of marriage and procreation. He makes it clear that an FMA remains one of the "ways in which firewalls could be built around the already battered institution of marriage." I would argue (and have) that the FMA would merely force the Supreme Court to acknowledge the firewall already in existence, one on which every previous loosening of the marital norm has been contingent.

In short, it isn't true that the procreative standard is not regulated within the law: the definition of marriage itself applies it. That the standard is not more strictly and explicitly regulated is only evidence of the degree to which all of the lawmakers and judicial precedent-setters believed it to be inherent. (Does anybody doubt that the oversight would have been swiftly remedied had our forebears had any inkling of our present circumstances?)

Here enters the larger gap in Sullivan's rhetoric. It simply isn't the case that "no one any longer upholds [the procreative marital standard] for straights" — unless by "no one" you mean "no judges" or (to be debatementally generous) "the law." Whether or not the average man or woman on the street would think to hammer it into words, the standard is still upheld firmly on a cultural level. In a manner of phrasing it, the possibility of this disconnect between law and culture is exactly why our representative branches are the ones that are supposed to write the law — exactly why so many judicial rulings, including Goodridge, are correctly derided as "activistic."

So, despite my expectation of disagreement when I began reading Sullivan's post at the urging of an emailer, I find that he and I are of like mind: an amendment to the Constitution is necessary if the citizens of the United States of America want the law's definition of marriage to accord with the culture's definition, and not the other way around. Oh, he'll insist that those citizens only "have to amend a state constitution," but if the decision of Massachusetts' high court was "inescapable," it is a thin ruse to insist that the same would not be true for the nation's high court.

I suffer from no delusion that advocates for same-sex marriage will allow the public's choices to remain so clear. Nonetheless, it is pleasant to bask in this little bit of light, particularly following an election day on which the people of eleven more states confirmed their willingness to write marital truths into the law.

Posted by Justin Katz at November 23, 2004 8:43 PM
Marriage & Family
Comments

I notice a similarity (perhaps the only one) between Sullivan and Dick Morris: though each can be the master of a very good argument, both are really led by their emotions. Each will construct an elaborate edifice of fact and reason which, upon careful examination, quite contradicts another of his own elaborate constructs of fact and reason. Why? Because each is merely using facts and reason to justify a position, more-or-less permanent or temporary, to which his emotion has lead him.

Posted by: ELC at November 24, 2004 9:35 AM

But then the big question that is begged is whether you would be in favor of enforcing the "marriage = procreation" standard against straights.

The common response is either to duck the question, or to claim it would be too hard to enforce.

Dale Carpenter (as cited by Carson's piece) offers what seems to be a straightforward and enforceable way of enforcing the procreation norm against heterosexuals, which, if legally done, would solve the inconsistency that Sullivan (and Goodridge) refer to:

"We would require prospective married couples to sign an affidavit stating that they are able to procreate and intend to procreate. If in, say, 10 years they had not procreated, we could presume they are unable or unwilling to do so and could dissolve the marriage as unworthy of the unique institution."

Sullivan, Carpenter, and others are saying if you really want to put your money where your mouth is and enforce an equal "procreative" standard to both homo and hetero couples, you will support such a policy. And Carson, to his credit, intimates that to reestablish the link between marriage & procreation, he might support such a move.

Posted by: Jon Rowe at November 24, 2004 7:11 PM

Jon,

Y'know, that's the exasperating thing about this debate. I've written many times (well, several at least), including in this post, that I reject the incorrect and loaded construction that one must either support some form of arguably arduous regulation of the procreation-marriage link or allow same-sex marriage. For one thing, I don't believe the central civil objective in encouraging marriage is or necessarily ought to be the creation of babies. Rather, I believe that it is and ought to be the encouragement of biological parents to stay together and raise any children who are born.

This may be where discussion tends to break down, with SSM supporters declaring an ulterior motive in their opposition, but I believe that the optimal regulation, per se, is simply the opposite-sex, paired, non-consanguineous definition of marriage. That isn't an "oh that's convenient" statement meant to exclude homosexuals; it excludes close relatives and polygamists, as well as any other arrangement not fitting the definition (e.g., same-sex heterosexual divorcées).

This is where the two views ultimately diverge; unfortunately, the debate has been constructed (deliberately) to define only one of the two possible conclusions as "bigoted" or, at the very least, inadmissible. Sullivan wrote in Virtually Normal:

Some might argue that marriage is by definition between a man and a woman; and it is difficult to argue with a definition. But if marriage is articulated beyond this circular fiat, then the argument for its exclusivity to one man and one woman disappears.

Sullivan's argument is every bit as much of a circular fiat. Essentially: "If we define marriage beyond its definition, then its definition is something else." One significant problem that arises, in this, for those who support SSM, is that they can't cite any reasons for recognizing homosexual marriages that don't make other aspects of marriage's "exclusivity" than the gender-based one disappear, as well.

Furthermore, a significant problem with the specific line of argument that you offer is that the proposed hypothetical solutions would clearly be hostile to the notion that they are ostensibly meant to reinforce. First, increasing the degree to which marriage is presented as a legal construct will corrode the cultural meaning that makes it a powerful institution. Second, introducing explicit regulations tied to procreation would discourage marriages among precisely the sort of people whom we want to draw into the institution: those most likely to slip away from the relationship when children are introduced into it.

That's not to say that there aren't creative solutions to the same effect. For example, what if the government offered "mutual-care unions" of some sort and instantly bestowed marriage on any couple that produced a child, in or out of such unions? Throw in some sort of strict law against bigamy (which would mean, in that context, parenting children with two different people), and the link between marriage and procreation is fortified, with salutary effects on our culture's treatment of sex, to boot. The idea ain't perfect, but it's a start.

Of course, those so keen to offer "alternative" ways in which bolster the procreative aspect of marriage aren't really interested in doing so.

Posted by: Justin Katz at November 24, 2004 7:49 PM

I agree Justin, why do advocates of SSM seem to offer the other side "victory" if only they would submit to some draconian cutbacks of their own definition of marriage? This one is particularly heinous, and i'm appalled that Carlson thinks it even worth consideration -- the closest we could ever come is rewarding parenthood itself through benefits, without ever requiring a proverbial "til death do us part" contract.

Here's my own alternative scenario to restore some value to marriage, and i'll even consider granting it to same-sex couples:

1. First Marriage, full benefits.
2. Second Marriage, 1/2 benefits, or even less.
3. Third Marriage+, nada. zilch. squat. It doesnt even count anymore.

So do we want to value the Institution again or not?

Posted by: Marty at November 25, 2004 9:34 AM

Justin,

Once again, sir, outstanding.

I cannot believe that someone with the caliber of Sullivan, who regularly chides George Bush for his lack of intellectual curiousity and also his apparent inability to admit failure, really believes that we traditional marriage defenders are so dumb as to believe that Sullivan is as "wide-eyed" naieve (as the situation warrants, and with ever-changing arguments) and "idealistic" as he presents himself to be.

This expat surely knows better, but he chooses to hide behind the veneer of conservatism (and, a thin veneer it is) to mask cultural radicalism.

It's fine for him to believe that he's getting away with it, but he isn't, as long as folks like yourself and Dr. Kurtz are around.

Posted by: Aaron at November 26, 2004 4:54 PM

But if marriage is articulated beyond this circular fiat, then the argument for its exclusivity to one man and one woman disappears

And a few scant months ago they were claiming that SSM could not logically lead/allow for polygamy. Of course, the arguments back then were just as empty. The best argument I recall was the "too icky" defense. Although, I would consider SSM to be more "icky" from an historical perspective than polygamy - at least polygamy has been recognized in the past and still is in some cultures.

Posted by: c matt at November 30, 2004 10:41 AM