IGF CultureWatch

Okay-so I promise that this is my last column for a while on the definition of marriage. Four out of five in a row is enough.

But I've learned a lot from writing these, especially because of comments from various marriage-equality opponents. Three points stick out.

First, the definitional argument is deeply important to them. Perhaps this shouldn't surprise anyone. But it does surprise me that even those who explicitly acknowledge that marriage is an evolving institution place great weight on what marriage has been, as if that would settle the question once and for all of what marriage can or should be. It doesn't.

Second, marriage does not lend itself to a pithy definition. Whatever marriage is, its definition won't be like, "A triangle is a three-sided plane figure."

That's because marriage is both evolving and multifaceted. Marriage is, among other things, a social institution, a personal commitment, a religious sacrament, and a legal status. It looks different from the spouses' perspective than it does from the outside; it looks different respectively to anthropologists, philosophers, theologians, lawyers, and so on.

Each of these perspectives can tell us something about what marriage is; none of them is complete or final. Any definition they provide, however useful, will be partial.

Third, those who emphasize the definitional argument, when they're not simply begging the question against marriage-equality advocates, often invoke a false dichotomy: Either marriage is a social institution for binding parents (and especially fathers) to their biological offspring, or else it is an adult expression of love-an expression that these opponents variously dismiss as selfish, empty, or "fluttery".

Contrast this with the actual view of most marriage-equality advocates, which is that marriage is both of these things, and then some.

Yes, marriage is the cross-cultural institution that has provided for the needs of children. But how? What makes marriage so suited to this purpose?

I'll hazard a guess: it does so because it is also an abiding commitment between the spouses. It binds them together "for keeps," thus creating a stable environment for any children who arrive.

So the view that marriage consists in abiding love between adults is not merely COMPATIBLE with the view that marriage serves children's welfare; the former actually helps explain the latter.

There's nothing "fluttery" about this. The abiding love of marriage is not just a vague feeling or promise-it's an ongoing activity. I'm reminded of the words of St. Augustine, "Dilige, et quod vis fac": "Love, and do what you want." Augustine knew that true love is challenging; it takes work.

After one of my recent columns, a prominent same-sex marriage opponent wrote:

"I invite you to look back at the entire world history of anthropological thought on the topic of what is marriage, and point out to me even ONE example of ONE scholar who has, based on ethnographic data, said, actually or in effect, since recorded history began, that marriage in human groups is properly defined as the promise of abiding love. If you can identify even one reputable scholar in the history of the world who has made such a statement or implied such a thing, I will grovel before you in abject intellectual humility and gladly buy you the lunch of your choice…"

Well, I couldn't find an anthropologist who said that. Actually, I didn't bother looking. Anthropologists define marriage by its cultural function, and "abiding love" isn't really their angle. But I did find this:

"The inner and essential raison d'etre of marriage is not simply eventual transformation into a family but above all the creation of a lasting personal union between a man and a woman based on love."

What radical, "fluttery" activist wrote these words?

Actually, it was Pope John Paul II.

Of course the late pope defines marriage as "between a man and a woman." No shock there. But the interesting thing is that he writes that marriage is "above all…a lasting personal union…based on love."

Perhaps he was distracted when he wrote this. Perhaps the Radical Gay Agenda had begun to infiltrate the Vatican.

Or perhaps the pope realized what most people know. Marriage is fundamentally a lasting personal union based on love-which is not to say that it is ONLY that.

As I said above-and it bears repeating-any neat definition of marriage will be partial and imperfect. There are counterexamples to this characterization, ways in which it is both too broad and too narrow.

But "marriage" is not definable in the way "triangle" or "bachelor" is.

And when marriage-equality opponents feel compelled to repudiate characterizations of marriage that The Gay Moralist, the previous pope, and most married couples all find obvious, you know they're in trouble.

The gay news from Africa gets more frightening every day.

In Uganda, a member of Parliament said he would hang his son if he learned that he was gay. He said this while the Ugandan Parliament debated an anti-gay bill imposing harsh penalties for homosexuality - including the death penalty.

In Malawi, a gay couple faces 14 years in prison because they held an engagement party. There, gay marriage is not just illegal (meaning, not allowed) - it is criminal.

And in Kenya, mob violence greeted fake reports of the marriage of two gay men. Rioters destroyed computers and other equipment in an AIDS clinic. They beat more flamboyant men in the street. And they went house to house in a witch hunt to find gay men, arrest them - and beat them.

The American reaction to this - even the gay American reaction - tends to be one of two things.

We're indifferent. Or we're horrified, but blame American Christians and expect them to fix it.

We blame American Christians because some extreme, anti-gay rightwingers encouraged fear of gays within the Ugandan government. Some have taken responsibility for that; some have not.

But it is not enough anymore for the gay community to stand by while our African brothers and sisters are rousted from their homes, beaten senseless, arrested and killed.

We cannot sit back and expect our homegrown American extremists to make it better. After all, they might have been responsible - or at least instigated - the situation in Uganda, but Kenya's horrors were incited by local Muslim clerics.

Instead, we must do what we can. And we can do a lot.

On the home front, we can use our political power to ensure that African gays and lesbians who are in danger in their home countries find political asylum here. And when they get here, we can help them find homes, jobs, education.

We can pressure our leaders to make public statements against anti-gay violence (Barack Obama, of Kenyan heritage and beloved in Africa, would be a particularly effective spokesperson).

And we can encourage our Congressional leaders to tie the billions of dollars of HIV/AIDS funding that we send to gay-friendly education efforts. If Republicans can add pro-life strings, why can't we add pro-gay ones?

But I think we can be even more creative than that.

Christians, after all, didn't have pull in Uganda because they made a speech. They have influence because they have spent millions of dollars in Africa - on AIDS, yes, and also on infrastructure, on food aid, on personnel to educate and heal and help. They send missionaries to live among the people. They recruit.

It is time we did the same.

We need Gays Without Borders. We need to start pooling our talent and resources and assisting developing countries.

After all, gays and lesbians - lesbians in particular - tend to gravitate toward non-profits. We are social workers, doctors, nurses, teachers. Why shouldn't we put that knowledge to use to help Africans? Who knows how to organize the medical establishment (or lack thereof) to fight AIDS better than gays and lesbians? Who can tend to AIDS patients better or with more empathy?

And we wouldn't help just gay Africans, either. Christian relief groups don't just help Christians. Instead, the idea is to be a model - and to encourage a certain way of thinking. In our case, that way of thinking would be: Gay is OK.

Many Africans think of gay people as being perverted. They think of us as an underground sexual cult of some kind. But Gays Without Borders could show them first hand that we are a people to be respected, emulated, idolized.

We are scared and horrified by the news coming out of Africa. It is time we did something about it.

An opponent writes, "What's YOUR definition of marriage? If you're going to use a word, you need a definition of the word."

I doubt that.

After all, most English speakers can competently use the word "yellow," but ask them to define the term (without merely pointing to examples) and watch them stammer.

And then try words like "law," "opinion," and "game" just for fun. It's quite possible to have functional knowledge of how to use a term without being able to articulate the boundaries of the relevant concept.

Alright, you say, but as someone deeply involved in the marriage debate, surely the Gay Moralist has a definition to offer?

Yes and no. I have definitions to offer, not a definition.

The word "marriage" can refer to many different things: a personal commitment, a religious sacrament, a social institution, a legal status.

And even if we focus on one of those-say, the social institution-there are other challenges. As David Blankenhorn puts it: "There is no single, universally accepted definition of marriage-partly because the institution is constantly evolving, and partly because many of its features vary across groups and cultures."

Blankenhorn makes this point in his book The Future of Marriage. It's an interesting concession, since he spends much of the rest of the chapter railing against marriage-equality advocates for offering "insubstantial" and "fluttery" definitions that emphasize personal commitment over marriage's social meaning.

Not surprisingly, his own definition emphasizes children:

"In all or nearly all human societies, marriage is socially approved sexual intercourse between a woman and a man, conceived as both a personal relationship and an institution, primarily such that any children resulting from the union are-and are understood by the society to be-emotionally, morally, practically, and legally affiliated with both of the parents."

Putting aside the odd claim that "marriage is…sexual intercourse" (rather than, say, a context for such intercourse), this is actually a pretty good description of what marriage typically is.

But the "typically" is key. On the very next page, Blankenhorn acknowledges a counterexample (raised by Christian theologians, no less): Marriage can't be essentially sexual, since if it were, the Virgin Mary's "marriage" to Joseph would not be a marriage. (And one could point to plenty of contemporary sexless marriages that are nevertheless marriages.)

Moreover, Blankenhorn's own definition includes the hedge-word "primarily," acknowledging that marriage has goals beyond providing for children's needs.

My fellow philosophers are often enamored of analyses that provide "necessary and sufficient conditions" for concepts: definitions that capture all, and only, the members of a class. But I have yet to see anyone on either side of this debate do that for marriage, and I doubt that it's possible.

The definition would have to be broad enough to include unions as disparate as King Solomon's polygamous household; Elizabeth Taylor's marriages to her various husbands; my maternal grandparents' arranged marriage; Bill's marriage to Hillary; Barack's marriage to Michelle. It would have to make sense of metaphors such as the claim that nuns are "married" to Christ (traditional profession ceremonies even involved wedding dresses). And yet it couldn't be so broad as to include just any committed relationship.

Are there necessary conditions for a union's being a marriage? Sure. For instance, there must be at least two persons. (I say "at least" because polygamous marriages are still marriages, whatever other objections we might have to them.)

Beyond the "at least two persons" requirement, we find a host of features that are typical: mutual care and concern, romantic and sexual involvement, a profession of lifelong commitment, the begetting and rearing of children.

But "typical" does not mean "strictly necessary," and for any one of these features, it takes very little imagination to think of a genuine marriage that lacks it. A "marriage of convenience" is still a marriage, legally speaking. A childless marriage is still a marriage. A marriage on the brink of divorce is still, for the time being, a marriage.

I am not suggesting that any of these scenarios is ideal. But our opponents' objection isn't that same-sex unions aren't "ideal" marriages. It's that they're not marriages AT ALL. And that objection is much harder to sustain when one surveys the various overlapping arrangements-some with children, some without; some intensely romantic; some not-that we call "marriage."

So what is marriage? For me, the standard vow captures it nicely, though of course not perfectly or completely. These are the words my parents used, and the same words I used with my partner, Mark:

Marriage is a commitment "to have and to hold; from this day forward; for better, for worse; for richer, for poorer; in sickness and in health; to love and to cherish; until death do us part."

"Fluttery?" Maybe. But real, and important, and good.

U.S. District Judge Vaughn Walker is gay.

Which means that the Proposition 8 case will be decided by someone it directly affects - that is, someone who can't get married under the current law.

The question of the week, of course, is: Is this fair?

A ferocious debate about this is raging in the press and the blogosphere. On one side is the National Organization for Marriage, the conservative, anti-gay marriage organization that has been fighting Prop 8 all along.

They immediately sent out a letter that read, in part: "[Judge Walker has] been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee."

This is ridiculous on its face. For one thing, a REALLY biased (for us) judge would have immediately issued a stay on Prop 8, allowing gay weddings to continue while the case was decided.

The truth is that the National Organization for Marriage would have called Walker an "activist judge" if he ruled against Proposition 8, no matter his sexual orientation. And odds are that we will win this case in Walker's court - simply because the anti-marriage folks presented a very weak (to non-existent) case.

On the other side are the gay blogs, many of which responded with surprise, secret joy and immediate fear about what the right would say. It almost goes without saying that the gay community thinks that Walker being gay is positive news for us.

But why would it be?

Though Walker lives in the liberal San Francisco metro area, he was appointed by the first President George Bush and is a proponent of law and economics, the more conservative/libertarian branch of law that grew out of the fairly conservative University of Chicago law school. He has been a judge for over 20 years without the issue of pro-gay bias coming up.

In fact, gay activists have previously cried foul over his actions. The San Francisco Chronicle reported (in the column that outed Walker's "open secret" to the country) that Walker once "represented the U.S. Olympic Committee in a successful bid to keep San Francisco's Gay Olympics from infringing on its name," leading gay Californians to "hold him in contempt."

But there is a broader issue here that extends beyond Judge Walker: Why are minority identities assumed to be biased in and of themselves?

After all, no one assumes that mainstream identities lead to bias. If a straight judge had won the draw for the Proposition 8 case, no one would automatically assume that he would uphold an anti-gay marriage law.

On the other hand, if he had espoused another minority identity like being Mormon, I bet you that gays and lesbians would have cried foul - even though there are plenty of Mormons who support gay marriage.

This issue comes up over and over again in American jurisprudence. People wonder if African-American judges will fairly rule on issues like affirmative action. They wonder if women judges will be objective when faced with gender discrimination cases.

And so of course they wonder - we all wonder - if Judge Walker feels and thinks differently about the Proposition 8 case because he's gay.

It comes up, of course, because judges are human. They can't help being swayed by their full identities and experiences, whoever they are. Sometimes being a minority makes them more sympathetic to the minority plight. Sometimes being a minority makes them LESS sympathetic, partly because they are worried that they, yes, will be seen as biased.

Being expected to think a certain way just because of your gender/ethnic/religious/sexual identity is insulting.

Democracy is messy. People have all sorts of secret feelings, all varieties of life experience, that can't be captured in simple Democrat/Republican, straight/gay labels. Judges are trained to overcome these as much as they can, but of course they will be swayed by them.

Which way will they be swayed? We can't predict. And that's why identities are not biases.

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.