Supporters of traditional marriage were not just defeated when New York recently redefined marriage to include homosexual unions. Their position was also thoroughly marginalized. Throughout the course of debate, clergy members who worked with gay marriage advocates released statements saying that supporters of traditional marriage were “using religion as a smokescreen to hide their intolerance.” It is certainly a common refrain — even Catholics within New York’s Senate said they had to set their religious beliefs aside to make a “vote of conscience” in favor of “marriage equality.” Yet the failure of progressives to entertain nonreligious arguments for traditional marriage, and the failure of conservatives to make them, gives the incorrect impression that there is little to be said about the purely civic value of the traditional two-parent family as society’s building block.
Such an argument must recognize that traditional marriage’s value is ascertainable to all in a religiously pluralistic society. The argument begins with the question of why the state recognizes marriage at all. It would not be logical for the state to offer special treatment to such one type of relationship based solely on considerations of “love” or “commitment,” or even transfers of wealth and property, which exist in but are neither unique nor in any way peculiar to marriage.
Noted sociologists Kingsley Davis and Bertrand Russell, historic legal scholars like Sir William Blackstone, and even New York’s courts have told us clearly why marriage has been, until now, a privileged institution: It is because only the sexual union of men and women create children. Society has important interests in children, even beyond the obvious fact that they are society’s future. Children are also big investments. In order to avoid expanded outside intrusion into the process of child rearing (think divorce, paternity suits, custody battles, and “The Maury Povich Show”), society has favored the stable, supportive environment that a united father and mother best provide.
Not everyone gets married with the intention (or capacity) to have children, but public policy expresses its preference by making general rules, not by legislating to the exception. The state has no business discerning the intention of every married couple with respect to children, nor can it predict future changes of mind (or fortuitous surprises). Some married couples are infertile — but again, it hardly seems wise, practical, or respectful of anyone’s privacy to have the government test spouses’ ability to procreate, nor is it necessary. The importance of marriage is not that every couple has children, nor that children are never born outside marriage, but that, on aggregate, traditional marriage creates society’s future and provides children with the best environment.
The importance of traditional marriage as an institution has nothing to do with the moral status of homosexuality. If inherently non-procreative relationships are now to be considered marital, then the state’s long-standing interest in marriage simply no longer exists. If a state alters its interest in marriage — perhaps by adopting buzzwords like “equality” and “love” — then there is no end to the state’s interest in standardizing, subsidizing, and penalizing various types of relationships. This is particularly ironic for the many civil libertarians who support “marriage equality” and “getting the government out of marriage choices.” Their reasoning has now sanctioned affection as a new, legitimate, state regulatory interest. In their quest to “expand freedom,” they have only helped the Leviathan grow.
There may come a point when all arguments against same-sex marriage will be castigated as the bigotry of a bygone era. Yet before the Human Rights Campaign, the American Civil Liberties Union and others continue the march of what they see as “the right side of history,” they should have to square their position with history’s true rationale for the privileges societies have given marriage.
William J. Haun is a law student at the Catholic University of America’s Columbus School of Law.
