IGF CultureWatch

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.

We rounded the corner and were met by an 8-year-old girl with her hand outstretched in greeting.

"How are you?" she asked. Her long ponytails jittered with energy. "My name is Selena. Can I ask you a question?"

"Sure," we said.

"What is progress?"

We were at the Tino Sehgal exhibit at the Guggenheim Museum in New York. All we knew in advance was that the exhibit was interactive and took over the entire rotunda. We didn't expect that the piece would wind up being a serious conversation with several different people on the same theme.

Selena started walking up the ramp that circles the entire inside of the museum and we walked with her. I looked at my partner Jenny and her friend Lori and said slowly, "Progress is when you take steps toward a goal."

"Can you give me an example of progress?"

"Gay marriage advancing from state to state."

"OK," she said. An older teenager, Jane, was waiting for us farther up the ramp, half hidden behind a pole. Selena summarized our conversation for her and vanished.

We walked alongside Jane, climbing the slope of the circular rotunda, ascending higher and higher with each word.

She asked us again about progress and when I again responded with gay marriage, she gave her own example of progress: the weekend before, she had been out with a group of friends. They were mixed gay and straight, and no one had really noticed. To them, the difference was insignificant.

We talked about what social progress means, and how we can tell if it has been achieved.

The conversation continued to get deeper as we climbed higher.

With the next interpreter, a man in his 20s, we talked about where progress came from. "Consensus," said Lori.

"And where does consensus come from?" he asked.

"Listening," Lori said. Our final interpreter was Michael, an older man who told us a story. He had recently been to a play with his wife, he said. The play compared gay life in the 50s with gay life today. What did we think, he asked us. Have gays and lesbians made progress?

"Absolutely," I said. "In my lifetime you can see that."

With each interpreter, our conversation became a slightly different take on broader social progress, but those conversations themselves were a sign of progress, too. It is impossible for me to imagine that 50 years ago - or even 20 years ago - a similar conversation could have been had with an 8-year-old, an 18-year-old, a 25-year-old and a senior citizen.

Yet here was a random collection of New Yorkers who each believed that gay marriage is progress and weren't afraid to say so to (very straight looking) strangers.

I've been thinking of those conversations ever since.

When we think of the progress we've made on gay rights, we tend to limit our definition to whatever big state or national battle is currently in the news. Did a state legislature vote for gay marriage? We crow about progress. Did voters take that right back again? We mourn our country's backslide into homophobic intolerance.

But the truth is that those big battles aren't making progress - they're reflecting it. Progress comes slowly, person by person, step by step, in conversations like the ones we were having in the Guggenheim's rotunda.

Progress comes when we listen to those who have doubts about gay rights and when they listen to us about how it hurts us to be denied what straight people take for granted.

Progress comes when we tell our own truths to our families, our friends, our colleagues, our clients. Progress comes when, through conversation, people stop seeing us as a thing to be feared and start hearing our stories and empathizing with them.

When we do win those big battles, it is partly because of strategy - but it is mostly because of stories. It is only after we win hearts that we win votes.

At the top of the rotunda, Michael shook our hands. "This is a work by Tino Seghal," he said. "It's called, 'This Progress."

And it was.