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.