Since my recent column discussing the "definitional argument" against marriage equality, I've learned something unsurprising:
There is no single, standard "definitional argument." There are, rather, various definitional arguments, and part of the problem is pinning down which one our opponents intend.
In the hope of advancing the debate-or at least of showing that the moving target is indeed moving-I'd like to distinguish, and briefly respond to, four versions. I'll give them names for convenience:
1. The "Logical Impossibility" Version:
This, in some ways, is the purest definitional argument against same-sex marriage. It is also the silliest. Here's Alliance Defense Fund attorney Jeffery Ventrella:
"[T]o advocate same-sex 'marriage' is logically equivalent to seeking to draw a 'square circle': One may passionately and sincerely persist in pining about square circles, but the fact of the matter is, one will never be able to actually draw one."
And again,
"The public square has no room for square circles, because like the Tooth Fairy, they do not really exist."
Notice that people don't normally bother arguing against square circles or passing constitutional amendments banning them, precisely because they do not-and cannot-exist.
Are same-sex marriages similar? Surely SOMETHING exists that people refer to as "same-sex marriage," and the question at hand is whether they should persist in doing so. Ventrella's "square circles" argument doesn't answer that question: it begs it.
In other words, Ventrella is assuming what he's supposed to be proving.
2. The "Obscuring Differences" Version:
This version, which is related to the first, states that same-sex relationships and opposite-sex relationships are so different that using the word "marriage" to apply to both would obscure a fundamental distinction in nature. As Maggie Gallagher puts it, "Politicians can pass a bill saying a chicken is a duck and that doesn't make it true. Truth matters."
Note that the objection is not that using terms this way would have bad consequences-confusing the butcher, for example-but that it would fail to divide up the world correctly. Even if nobody noticed or cared, such usage would blur a real boundary in nature.
The problem (as I argued previously) is that marriage is a human institution, the boundaries of which are drawn and redrawn for human purposes.
3. The "Bad Consequences" Version:
But what if such redrawing had bad consequences? This, I think, is the real concern driving the definitional arguments. Gallagher, for example, thinks that defining "marriage" to include gays and lesbians would ultimately erode the institution.
David Blankenhorn has similar concerns. Indeed, his own version of the argument makes the consequentialist undercurrent apparent: instead of square circles or duck-chickens, Blankenhorn asks us to imagine what would happen if the word "ballet" were used to refer to all forms of dance.
Of course redefining "ballet" that way would be bad. But that's because doing so would frustrate human aims. If you go to the theater to see ballet and end up getting Riverdance instead, you'll likely be upset or disappointed.
Would extending marriage to gays and lesbians frustrate human aims in a similar way? Marriage-equality opponents like Blankenhorn and Gallagher certainly think so. Specifically, they think it would sever marriage from its core function of binding children to their mothers and fathers.
But now it seems that the definitional point is no longer doing any argumentative work. The real objection here is that same-sex marriage harms society. If that's the objection, let's focus on it directly.
4. The Constitutional-Law Version:
There is, however, a fourth version of the definitional argument, one specifically related to the constitutional debate.
Legal advocates for marriage equality-such as Ted Olson and David Boies, who are challenging California's Prop. 8-often argue that gays and lesbians deserve the freedom to marry because of the Fourteenth Amendment's equal-protection and due-process guarantees. But if same-sex marriage involves CHANGING the definition of marriage, opponents contend, the Fourteenth-Amendment argument falters.
According to this version of the definitional argument, gays and lesbians are not being denied equal access to an existing institution, they are asking for an existing institution to be redefined. There may well be good reasons for redefining it. But that is a matter for legislatures to decide, not courts.
This version is more subtle than the others, and addressing it fully requires more space than I have here. But my quick response would be that marriage case law over the last four decades suggests that male-female isn't a defining element in the way this argument requires.
Consider for example Griswold v. Connecticut (1965), which affirmed the right of married couples to purchase contraceptives, and Turner v. Safley (1987), which affirmed the right of prisoners to marry. Marriage is defined by its core purposes, and those purposes do not necessarily require (actual or potential) procreation.
The fact is that same-sex couples fall in love and commit their lives to each other for better or for worse, for richer or for poorer, until death do they part.
And if it looks like a duck and walks like a duck and quacks like a duck, then legally speaking it ought to be treated like a duck.
9 Comments for “Refining—Not Redefining”
posted by Amicus on
Of all these, I continue to judge #3 the most pernicious.
I’ll just leave that unargued, for now.
posted by TS on
Numbers 2 and 3 are off topic; 2 is semantical and 3 is pragmatic.
I reiterate my argument about number 1, which is that this isn’t so much a logical argument as a rallying cry for the “sane” against their percieved persecutors.
Number 4, I actually agree with. If we circumvent a popular referendum with more stretched constitutional judiciousness, we will make new enemies. When you write a new phrase into the constitution, it cannot exist in contradiction to the constitution because it becomes the constitution. I wish there were gay marriage in California, but this is not the way to get it. I don’t believe constitutions, those noble documents of principle and restraint, should be subjected to plebiscites. But to prevent them from happening in the future, I believe the only rightful strategy is to persuade either people or their representatives to ban that practice by constitutional amendment, by appealing to their sense of what is right and fair. If it can’t be done that way, then it wasn’t really done.
posted by Lymis on
TS: “When you write a new phrase into the constitution, it cannot exist in contradiction to the constitution because it becomes the constitution.”
But that logic only works when the two phrases are not in direct contradiction to each other. You require in one part something you bar in another. You cannot mandate equality in one clause and then deny it in another. It puts the document fundamentally at odds within itself.
posted by TS on
One of the generally accepted purposes of amendments is to make new exceptions to principles spelled out in the constitution above. Imagine the U.S. constitution were amended to eliminate the electoral college, as it should be. The Amendment would say “There is no longer an Electoral College. Direct popular vote now elects the President of the United States.” You couldn’t argue “but the original constitution says that there is an electoral college! Oh no, the document is now self-contradictory.”
To say some parts of the constitution are more constitutional than others sets a dangerous precedent, because who gets to decide? Today the equal protection clause over Proposition 8, tomorrow the 3/5ths compromise over the emancipation amendment.
Don’t erode the principle of constitutional amendment, because it is exactly how we are going to overturn the Plebiscite, hopefully sooner rather than later, but necessarily directly rather than sneakily.
posted by Lymis on
Sorry, that doesn’t work.
Prop 8 did not say “there is no longer equal protection for gay people” or in any other way reference that it was altering another provision of the existing Constitution. It did not carve out an exception to other Constitutional language. It just tacked itself into the text.
An amendment that specifically overrides or references another provision to clarify it is exactly what you said. By not explicitly stating how the new provisions impact the existing ones, it does in fact leave that contradiction in place. In fact, the whole process, including the ballot phrasing, was clearly intended to pretend that the contradiction didn’t exist – by definition, throwing it to the judiciary to sort the mess out, with the inevitable cries of “activist judges.”
posted by Marty on
It’s definitely a definitional argument.
There are really only 4 restrictions on marriage, none of which have anything to do with “sexual orientation”.
The parties to a marriage:
1. Must be of legal age.
This varies widely, by state. Certainly open to legislative changes.
2. Must not be too closely related.
Again, varies by state. Some allow first cousins, some don’t. None allow siblings, but could a legislature allow it? Arguably so.
3. Must not be currently married to someone else.
This must be a federal statute, as there is no variance by state and indeed this was a precondition for Utah to even become a state.
4. Must be opposite sexed.
Until about 5 minutes ago, there was no state variance here. Historically, culturally, this restriction comes the closest to being absolutely universal across all time and space — and may very well be the sine qua non of marriage.
Honestly, you’ll find more historical support and precedent for child marriages, incestuous marriages, or polygamous marriages, than you will for same-sex marriage.
So no. It might actually be a Platypus, not a duck after all.
posted by CPT_Doom on
Of course redefining âballetâ that way would be bad. But thatâs because doing so would frustrate human aims. If you go to the theater to see ballet and end up getting Riverdance instead, youâll likely be upset or disappointed.
Isn’t the analogy exactly the opposite, or at least should be? That redefining “dance” to include Riverdance (a new form of dance derived from a traditional form) or the free-form movements that began in the 60s, did not do anything to change ballet. The definition was expanded, not changed.
There is another key feature of marriage that has not been discussed in your otherwise insightful columns, John – marriage creates new family relationships. In fact, it is the only legal way to create new family relationships among adults.
There are only three ways to be related to someone – birth/blood, adoption or marriage. Whether you are talking about marriages with adultery like the Clintons, marriages based on strict gender roles like the Duggars (of “X children and Counting” fame), the childless marriage of Patrick Buchanan, arranged marriage, loveless marriages or same-sex marriages, there is one key component they all share. Adults who were previously unrelated became related through the process of marriage. Of course marriage can also exist between related people – third cousins in the entire US, as well as second and first cousins depending on state law – but even then the marital relationship supercedes the blood relationship.
To me, this is the real inequity in the lack of marriage equality. The only way to supercede the blood/adoption relationships is through marriage to an unrelated (or more distantly related) person. More importantly, the blood/adoptive family cannot challenge that supercession, except in very limited circumstances (see Anna Nicole Smith). Without that option of superceding the blood/adoptive relationships, there is no way for LGBT individuals to ensure the lives they build with their partners/spouses are protected or respected in cases of emergencies or death.
Perhaps the creation of a new family relationship is a good starting point for a universal definition of the term.
posted by David in Houston on
I find Marty’s list of marriage qualifications to be very enlightening. It should give Marty pause to consider the whole “sanctity of marriage” diatribe that groups such as NOM use. I see no “sanctity” in his list of 4 items. I don’t see “love” or “procreation” in his list. It all seems rather simplistic to me. The idea of EXPANDING item #4 to include same-sex couples should be a non-issue, especially when the criteria are so minimal. In fact, it IS a non-issue in 7 countries.
I think Marty would be hard pressed to say that an 18 year old heterosexual couple that have been dating for one month have more of a right to marry than a same-sex couple that have been together for 20 years, just because one is a “duck” and the other is a “platypus”. Isn’t that the same argument that was used against interracial marriage? Interracial marriage is not the same thing as same-race marriage so it isn’t valid. The list of qualifications was expanded to include interracial couples (against the will of the public, I might add).
“There are really only 4 restrictions on marriage, none of which have anything to do with “sexual orientation”.”
Item #4 has EVERYTHING to do with sexual orientation. “Must be opposite sexed” defines marriage for heterosexuals only. Heterosexual IS a sexual orientation. I don’t know how you can say otherwise.
posted by fannie on
Many “marriage defenders” say that marriage is not a human construction, but rather “like a duck,” it is found in nature as a phenomenon that is not human-made.
If that is so, then allowing same-sex couples to “marry” would have no effect on marriage or its stability. Ducks would not cease to be ducks if we started calling platypuses ducks. It is those who are insecure in their ultimate truths who insist that something in nature can and will be destroyed if we do not properly label it.
The far more relevant question to this debate is whether same-sex marriage will have good or bad (or both) consequences for society. Unfortunately, too many “marriage defenders” try to prevent that conversation from happening at all by insisting that two people of the same-sex cannot get married because the definition of marriage is one man and one woman and that’s that.