I know it’s considered unpopular, bigoted, and homophobic to be against SSM these days, but before you shut your ears, please hear me out and at least think about these questions: Why should the government be in the marriage business in the first place? If we remove marriage altogether, homosexuals and heterosexuals still have the freedom to love and be committed to each other. Why is a relationship license a basic human right but a friendship license is not a basic human right? I made this article for my political science class and even my Professor, who turned out to be in a gay relationship, said “Very nice paper, Gil. Well researched and argued.” I was pleasantly surprised that she said this. I’m hoping that SSM supporters will be able to show the same charity, despite any disagreements you may have.
What Is Marriage?
In response to the Supreme Court’s recent approval of same-sex marriage (SSM), those in favor of traditional marriage (TM) have argued that “before we can conclude that some marriage policy violates the Equal Protection Clause, or any other moral or constitutional principle, we have to determine what marriage actually is and why it should be recognized legally in the first place.” For example, TM supporters point out that someone cannot claim a right to life without knowing what life is and why human life in particular has a “right” to life when plants do not. The same principle applies to marriage; heterosexuals and homosexuals must justify why they have a right to marriage. Consequently, TM advocates argue that no right can be something society subjectively invents (otherwise rights can be changed to allow for murder and other crimes), but rather something society objectively discovers. In other words, this objection can be outlined in the following way:
Either marriage is a social construction or it has an objective nature.
- If marriage is a subjective, social construction:
- …then marriage can be defined to be whatever we make it to be and it thereby has no way in which it “ought” to be.
- …then there is nothing wrong with defining marriage as between members of the opposite and/or same sex.
- If marriage has an objective nature:
- …then marriage is something discovered through nature rather than constructed, and it thereby has a way in which it “ought” to be.
- …then nature tells us that it is between a man and a woman.
If marriage is defined subjectively by mere social whim, then every state is free to define marriage however it pleases (including the federal government). This, TM supporters argue, would be problematic for both sides. Neither side could oppose each other unless they ground their conception of marriage in something objective. In rebuttal, SSM supporters assert that since the legal system is man-made, the government may impose whatever regulations it pleases. However, TM advocates argue that since the government is coercive by nature (as it needs to be in order to enforce its laws), there should be as little government as possible unless it is needed for the good of society. At first glance, then, it would be difficult to understand why the government needs to get involved in marriage any more than claiming it needs to be involved in regulating friendships. The burden of proof would be on both sides to objectively demonstrate what marriage is, and what about marriage makes government regulation necessary. Otherwise, marriage should be completely removed from government intervention.
Two Competing Definitions Of Marriage
TM Advocates: define marriage as between a man and a woman “who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together.”
SSM Advocates: define marriage as a “union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life.”
A Secular Argument For TM
TM advocates argue for their definition in the following way: In order for society to exist at all, it must depend on heterosexual relationships for its survival and its flourishing. This is a biological fact because only heterosexuals with their distinctive yet complimentary sexual organs can reproduce. It is also a fact that after birth, children need to be properly nurtured by parents in order to fully flourish. This nurturing not only includes necessities like food, but it also includes parental love committed to their child’s moral flourishing. Without this committed love, the child will likely suffer. The child could have received nurturing elsewhere (e.g. schools or foster parents), but the child has a right to love from its biological parents because the child was created from the union of the parents’ DNA. Therefore, the biological parents have primary responsibility for their child – foster parents only have a secondary responsibility that is legally imposed. For the biological parents to neglect their child would be to neglect a part of themselves. Hence, biological parents have a unique obligation to care for their child.
Because of its procreative nature, a heterosexual kind of relationship that is romantic, committed, and monogamous is capable of providing a unique social good over and above any other relationship. A homosexual kind of relationship cannot produce this unique social good because their sexual organs cannot procreate with each other by nature. Similarly, this unique social good cannot be produced by having sex with multiple partners for the mere sake of procreation. This is because procreation without loving commitment is mechanical production, which is contrary to what children require to fully flourish. Likewise, it is impossible for polygamy to produce this unique social good because only two biological parents are necessary to produce a child. It does not make sense for primary parental responsibility to extend to the multiple partners (e.g. three, fifteen, one hundred) in a polygamous relationship. If more than two people were required to create a child, then procreation would require polygamy (not monogamy).
The kind of relationship that is capable of producing this unique social good is of interest to the government. This is because the government must promote what society needs to survive and flourish. Since a heterosexual kind of relationship is essential to society’s continual existence and flourishing, it must be something that the government is naturally interested in promoting. Since it is difficult to maintain a child, the government seeks to provide benefits in order to ease this burden while also providing protection for the child in the event that something occurs to end the “monogamous commitment” (e.g. death, divorce).
If this TM argument is successful, it would demonstrate how marriage is objective and can exclude SSM without being discriminatory. TM supporters point out that their argument is a strictly secular one – not religious or legal.
A Counter Argument For SSM
SSM advocates object to the secular argument for TM above because of infertile couples. If marriage was about creating and nurturing children from your own sexual organs, then infertile couples would not be considered married. SSM supporters also point out that in vitro fertilization provides homosexuals the ability to procreate, which would remove the “uniqueness” claim from heterosexual relationships. Additionally, homosexuals can adopt children and nurture them. Since homosexuals can nurture children, they are capable of contributing to the good of society. Therefore, SSM advocates argue that the government should be interested in promoting SSM.
Rebuttal From TM Supporters
In response, advocates of TM note that the SSM counter argument would still not justify the government’s involvement in marriage. Firstly, the SSM argument is not a positive one – that is, the argument does not provide justification for its definition of marriage:
A union of two people (whether of the same sex or of opposite sexes)
who commit to romantically loving and caring for each other and
to sharing the burdens and benefits of domestic life.
For example, TM supporters ask why a “romantically loving and caring” relationship should be restricted to two people since more than two people can have a “romantically loving and caring” relationship (e.g. polygamy). The SSM argument also does not justify why the government should regulate a “romantically loving and caring” relationship. TM advocates point out that a “friends with benefits” relationship is also “romantically loving and caring,” so according to this definition, they should be granted marital status. For these reasons, TM supporters reject this definition of marriage because it is subjective and arbitrary – it can be changed based solely on personal whims. TM advocates point out that they are able to justify their definition of marriage with secular, objective reasoning.
Rebuttal: Infertile Couples
TM supporters note that the purpose of marital union is procreation even if procreation never actually happens. Infertile couples have defective sexual organs, but they still satisfy the kind of union that is essential for the survival and flourishing of society. On the other hand, a homosexual couple’s inability to procreate is not a defect, but is inherent in the nature of their relationship.
Rebuttal: In Vitro Fertilization
Although SSM advocates argue that in vitro fertilization is a possibility for homosexuals,
this fertilization is always dependent of heterosexual unions. A female-female homosexual relationship can provide an egg for procreation, but must rely on a third-party sperm donor. A male-male homosexual relationship can provide sperm for procreation, but must rely on a third-party surrogate to bear a child. In both cases, the homosexual couples cannot create a child with their own sexual organs. Therefore, heterosexuals are the only kind of relationship that can produce a unique social good.
TM supporters point out that anyone can adopt a child – even an unmarried person. However, adopting a child does not warrant a right to marriage or marital benefits. Additionally, unless heterosexual unions produce children, adoption is not possible.
To conclude, TM advocates point out that the government can only regulate on a generic basis. Imposing regulations on an individual basis is invasive, and requires massive legislation and resources. For example, the government would need to inspect each relationship on a regular basis to ensure genuine “romantically loving and caring” (SSM) or “romantic, committed, and monogamous” (TM) behavior. This is neither practical or achievable. So even if the infertile objection was successful, it would not be reasonable for the government to evaluate every couple’s fertility, let alone every couple’s intention to bear a child. If it were reasonable, then supporters of SSM must concede that the government ought to evaluate every couple’s commitment and love as well. Therefore, the government can only be interested in regulating the kind of relationship necessary for the good of society.