The "right' to gay marriage, reconsidered

A federal judge in California recently ruled that gay people have the same right to get married as straight people. Laws that prohibit gay marriage, said Judge Vaughn Walker, are unconstitutional, irrational and unjust.

It's the right decision for the wrong reasons, I would argue.

These days we hear plenty of talk about the "right" to get married, as if marriage is a temporary private contract between two consenting adults, to be terminated by mutual agreement if it no longer works. When Al and Tipper Gore split up this past spring, for example, the family researcher Stephanie Coontz observed, "It should be reassuring to know that if your marriage does become deeply unsatisfying, you have other ways to live the rest of your life."

But if that's all there is to marriage, the state would have no interest in promoting or regulating it. On the contrary, I submit, marriage is a lifelong commitment that two spouses make not only to each other but also to their community. And that's very heavy stuff.

That is why, for centuries, Christian weddings were traditionally preceded several days in advance by the "reading of the banns"— a public announcement to enable anyone to raise canonical or civil objections to a marriage. It is why, at the very moment before pronouncing a marriage, ministers traditionally turn to the congregation to demand, "If any person can show just cause why they may not be joined together, let them speak now or forever hold their peace."

A rabbi's fury

It also explains why my step-grandmother generated such fury in the 1930s by running off and eloping with her first husband. When the newlyweds sheepishly returned to New York and asked a family friend— Rabbi Mordecai Kaplan— to sanctify their marriage by conducting a ceremony of his own, he read them the riot act.

"Don't you know that marriage is a commitment you make to the Jewish people?" thundered the founder of the Reconstructionist branch of Judaism.

And surely you recall the 18th-Century wedding in Stanley Kubrick's film Barry Lyndon, in which the Anglican Reverend Runt spells out "the causes for which matrimony was ordained":

"First, it was ordained for the procreation of children to be brought up in the fear and nurture of the Lord, and to the praise of His holy name. Secondly, it was ordained for a remedy against sin, and to avoid fornication."

Note the absence of a single word about rights or love or personal satisfaction.

Times have changed, for sure. But for judges and legislators, I submit, the relevant question remains: not who has the right to get married, but what is society's interest in the institution of marriage— gay or straight.

Order out of chaos

I can think of several state interests. Marriage provides an effective, voluntary, non-coercive means of imposing social order out of chaos. It's probably the best vehicle for raising children. In an age when health care costs are shared communally, it's an important outlet for healthy sex and consequently a tool for reducing sexually transmitted diseases. It probably helps stabilize real estate values, too.

For all these reasons and doubtless many others, society has a vested interest in encouraging adults— gay or straight— to enter long-term committed relationships.

Sex by the numbers

You needn't be a devout Anglican like the Reverend Runt to perceive the danger that fornication poses to a society; simple mathematical aptitude will suffice.

Do the math: Even if each of us waited until age 18 to have sex for the first time, and even if thereafter we had sex just once a year with a single new partner, within 20 years that single annual sex act would expose each of us to the sexual histories of more than a million partners. Conversely, if each of us had sex every day of the year with the same exclusive partner, we'd be exposed only to one person's sexual history, even after 50 years of constant sex.

Forget about going to heaven; this is a prosaic matter of enjoying sexual fulfillment without endangering your health or unloading your medical bills on the rest of society.

So now gay men and women are clamoring to sign up for what amounts to a lifetime non-fornication program— and social conservatives want to stop them? Are they out of their minds?

The case for straight marriage

Heterosexual marriage in particular offers probably the best arrangement for humanity's most important function: the reproduction of the species. It provides an environment in which two drastically different but mutually dependent human types— men and women— can coexist together. Ingeniously, the marriage commitment restrains the natural male impulse toward promiscuity while simultaneously restraining the natural female impulse to mate with the highest-status male available.

Other things being equal, I suggest, a heterosexual household is a better place to raise kids— not because straights are inherently better parents than gays, but because men and women really are different, and kids benefit from their contrasting perspectives.

So, yes, social conservatives are right when they argue that lifelong heterosexual monogamy is a uniquely valuable institution that deserves society's distinctive recognition and support. If they could demonstrate that gay marriage undermines straight marriage, they could count me among their supporters.

But of course they've failed to demonstrate any such thing. That was precisely Judge Walker's point in his ruling this month.

Biblical fears

Back in the good old days of high infant mortality rates when the Bible was written, every sperm and uterus— even gay sperm and uteri— was needed to assure the replenishment of the species. So society had rational reasons for discouraging homosexuality. But today, when humanity's great threat is not population loss but overpopulation, there's no reason to prohibit gay marriage and plenty of reason to encourage it.

Society's essential needs do change. And, yes, society does have a vested interest in the happiness of its members. Happy citizens make a healthier society, as enlightened rulers since Queen Elizabeth I have recognized. If marriage nowadays enhances individual happiness, so much the better.

But from the state's perspective, marriage is above all a valuable civic service— like paying taxes, joining the army, walking a Town Watch beat, working in a homeless shelter or serving in the Peace Corps. Who would want to discourage citizens from pursuing any of these activities, regardless of their sexual orientation?♦


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