Natural, Civil, and Religious: Bridging the Divide over Same-Sex Marriage

Perry Dane

Perry Dane

I want in these few pages to share one sliver of one piece of a larger project on the debate over same-sex marriage.

Over the years, proponents of same-sex marriage have distilled their arguments into two powerful slogans: “Freedom to Marry” and “Marriage Equality.” These two ideas – “Freedom to Marry” and “Marriage Equality” – are not identical. But they do both rest on a common strategy.

That strategy is essentially a two-step movement.  The first step is to strip marriage of much of the thick meaning that has traditionally been associated with it.  Not only specific religious and cultural beliefs, but more importantly the basic idea that marriage might be, at its historical, anthropological, and conceptual core, an institution arising out of the distinctive need to structure the connection between heterosexual sex and the continuity of the species.  Once the meaning of marriage is thinned out, or hollowed out, so that all that is left is the deep affection and commitment between two persons, the second step in the argument is obvious:  The traditional exclusion of same- sex couples from marriage is unjustifiable because, with respect to that thinner conception of marriage, there is no relevant difference between same-sex couples and heterosexual couples. Another way to put these two steps is this:  First, we observe the institution of marriage from a great height, like astronauts looking at the Earth.  Then we conclude, from that height, that we just  can’t see the purported boundaries that define marriage in heterosexual terms.

I argue that this hollowing out of the meaning of marriage is problematic for several reasons – not necessarily wrong, but worrisome. I can’t go into all those reasons here, but four are worth mentioning. First, the hollow view of marriage makes it hard to draw any boundaries at all around the institution or even figure out its purpose.  Second, it makes it difficult to understand many of the details of the institution of marriage that even supporters of same-sex marriage take for granted. Third, it unfairly labels all opponents of same-sex marriage as mere bigots. Fourth, it renders a bit mysterious why same-sex couples should care so much about marriage in the first place.

Here, though, I want to emphasize a different point. The hollowing out of marriage – the stripping away of the idea that marriage, in some core or paradigmatic sense, is a heterosexual institution- is unnecessary to the case for same-sex marriage. We can, even if only for the sake of argument, keep the thick meaning of marriage – including the thickly heterosexual paradigm of marriage – and still believe that it is good, just, fair, and morally necessary for same-sex couples to be able to get married. The point is this: It is entirely possible to extend a rule or an institution beyond its paradigm case without rejecting the paradigm itself. We do it all the time. To return to my earlier image, we can, instead of rising to an abstract height from which we can no longer see any sensible boundary between the paradigm case and its new extension, just decide, at ground level, so to speak, that the boundary should be breached.

I call this form of argument “analogy of dignity.”  There are many examples, but let me focus on one:  The law of adoption.  There is at least a broad, if not universal, consensus that the paradigm form of the parent-child relationship is biological-  not only biological, but at least biological.  OthefW’ise, we would just assign newborn children to random worthy and loving parents.  Nevertheless, we also recognize that not all children can or should be raised by their biological parents.  Americans also decided around the middle of the 19u’ century, that in some circumstances, it is both fair and practical to treat substitute caregivers as legal parents.  Hence the first adoption statutes and the beginning of the development of the American adoption law.

The argument for same-sex marriage can take a similar form.  Marriage, because of its deep roots and broad significance, has come to play a central role in how we  organize our legal, personal, and social lives and identities.  Marriage might be paradigmatically heterosexual, just as parentage is paradigmatically biological.  But not all loving, committed, couples are heterosexual.   Moreover, the heterosexual definition of marriage effectively excludes most gay men and women, not only from specific marriages, but if they are honest to themselves, from any marriage.  Therefore, a caring society that values the dignity and well-being of all its members might conclude that, despite the paradigm, it is fair and good and decent that the possibility for marriage should be extended to same-sex couples.

Now, though, comes the hard part with which I have struggled.  Is this argument from “analogy of dignity” condescending?  Does it treat same-sex marriage as mere consolation prize, a second-hand appendance to “real” marriage?

When I first thought about this question, my response was defensive. No, an argument from analogy of dignity is not condescending.  It is a good enough argument for same-sex marriage. But now I want to go further. I propose that this argument is distinctively worthy, that same-sex marriage understood this way is not an afterthought, but can rather reflect a society’s profound decision to do right by all its members, paradigms be damned. Moreover, to deny this only reflects a poverty in our moral, political, and legal vision.

There are several ways to think about what I’m getting at. First, recall the two slogans that have dominated arguments for same-sex marriage:  “Freedom to Marry” and “Marriage Equality.”  Freedom to Marry is as an argument for liberty.  Marriage Equality is, well, an argument for equality.  Liberty. Equality.  But what about Fraternity?  There’s a Rutgers connection here, for it was Wilson Carey McWilliams, the giant of political science at Rutgers who devoted much of his career to tracing the important if often overlooked place of fraternity- the sense of fellow-feeling in a common endeavor- in American thought  and history.   My argument for same-sex marriage doesn’t fit perfectly into McWilliams’s account of fraternity, but the family resemblance is there, as is the insistence that fraternity is as worthy a ground for change as liberty and equality.

Another perspective. The argument here moves beyond equality to the Golden Rule. Equality- at least the conventional understanding of equality- demands that like cases be treated alike. The Golden Rule asks each of us to put ourselves in the shoes of our fellow even in the face of differences.

A third perspective: Some thirty years ago, Carol Gilligan distinguished between an ethic of justice and an ethic of care. Put aside whether care might really be a form of justice.  The deeper point is that care is not condescending, it is vital to our humanity. A similar point might be made about the relevance of what some call virtue ethics to this conversation.

Fraternity. The Golden Rule. Care and virtue. Not bad. But they’re also hard. Arguments resting on Freedom to Marry and Marriage Equality claim to have a logical coercive power. They are abstract and compulsory. To deny them is to be a bigot.

My argument does not claim to be abstractly compelled. It is contingent and situational. It respects the opposition. It requires empathy, and might rest on personal acquaintance. It is directed to our conscience more than to our constitution. But the slow slog of same-sex marriage suggests that it is precisely that lived experience of empathy and conscience – more than the imperial compulsion of abstract notions of liberty and equality – that have already and will continue to be at work.

Perry Dane is a professor at the Rutgers School of Law–Camden. He is an expert on constitutional law and the U.S. Supreme Court and is the author of numerous landmark articles on same-sex marriage.

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