Our courts, which have mishandled abortion, may be on the verge of mishandling homosexuality. As a consequence of two pending decisions, we may be about to accept homosexual marriage.
In 1993 the supreme court of Hawaii ruled that, under the equal-protection clause of that state’s constitution, any law based on distinctions of sex was suspect, and thus subject to strict judicial scrutiny.1 Accordingly, it reversed the denial of a marriage permit to a same-sex couple, unless the state could first demonstrate a “compelling state interest” that would justify limiting marriages to men and women. A new trial is set for early this summer. But in the meantime, the executive branch of Hawaii appointed a commission to examine the question of same-sex marriages; its report, by a vote of five to two, supports them. The legislature, for its part, holds a different view of the matter, having responded to the court’s decision by passing a law unambiguously reaffirming the limitation of marriage to male-female couples.
No one knows what will happen in the coming trial, but the odds are that the Hawaiian version of the equal-rights amendment may control the outcome. If so, since the United States Constitution has a clause requiring that “full faith and credit shall be given to the public acts, records, and judicial proceedings of every other state,” a homosexual couple in a state like Texas, where the population is overwhelmingly opposed to such unions, may soon be able to fly to Hawaii, get married, and then return to live in Texas as lawfully wedded. A few scholars believe that states may be able to impose public-policy objections to such out-of-state marriages—Utah has already voted one in, and other states may follow—but only at the price of endless litigation.
That litigation may be powerfully affected by the second case. It concerns a Colorado statute, already struck down by that state’s supreme court, that would prohibit giving to homosexuals “any claim of minority status, quota preferences, protected status, or claim of discrimination.” The U.S. Supreme Court is now reviewing the appeals. If its decision upholds the Colorado supreme court and thus allows homosexuals to acquire a constitutionally protected status, the chances will decline of successful objections to homosexual marriage based on considerations of public policy.
Contemporaneous with these events, an important book has appeared under the title Virtually Normal.2 In it, Andrew Sullivan, the editor of the New Republic, makes a strong case for a new policy toward homosexuals. He argues that “all public (as opposed to private) discrimination against homosexuals be ended. . . . And that is all.” The two key areas where this change is necessary are the military and marriage law. Lifting bans in those areas, while also disallowing anti-sodomy laws and providing information about homosexuality in publicly supported schools, would put an end to the harm that gays have endured. Beyond these changes, Sullivan writes, American society would need no “cures [of homophobia] or reeducations, no wrenching private litigation, no political imposition of tolerance.”
It is hard to imagine how Sullivan’s proposals would, in fact, end efforts to change private behavior toward homosexuals, or why the next, inevitable, step would not involve attempts to accomplish just that purpose by using cures and reeducations, private litigation, and the political imposition of tolerance. But apart from this, Sullivan—an English Catholic, a homosexual, and someone who has on occasion referred to himself as a conservative—has given us the most sensible and coherent view of a program to put homosexuals and heterosexuals on the same public footing. His analysis is based on a careful reading of serious opinions and his book is written quietly, clearly, and thoughtfully. In her review of it in First Things (January 1996), Elizabeth Kristol asks us to try to answer the following question: what would life be like if we were not allowed to marry? To most of us, the thought is unimaginable; to Sullivan, it is the daily existence of declared homosexuals. His response is to let homosexual couples marry.
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Sullivan recounts three main arguments concerning homosexual marriage, two against and one for. He labels them prohibitionist, conservative, and liberal. (A fourth camp, the “liberationist,” which advocates abolishing all distinctions between heterosexuals and homosexuals, is also described—and scorched for its “strange confluence of political abdication and psychological violence.”) I think it easier to grasp the origins of the three main arguments by referring to the principles on which they are based.
The prohibitionist argument is in fact a biblical one; the heart of it was stated by Dennis Prager in an essay in the Public Interest (“Homosexuality, the Bible, and Us,” Summer 1993). When the first books of the Bible were written, and for a long time thereafter, heterosexual love is what seemed at risk. In many cultures—not only in Egypt or among the Canaanite tribes surrounding ancient Israel but later in Greece, Rome, and the Arab world, to say nothing of large parts of China, Japan, and elsewhere—homosexual practices were common and widely tolerated or even exalted. The Torah reversed this, making the family the central unit of life, the obligation to marry one of the first responsibilities of man, and the linkage of sex to procreation the highest standard by which to judge sexual relations. Leviticus puts the matter sharply and apparently beyond quibble:
Thou shalt not live with mankind as with womankind; it is an abomination. . . . If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be upon them.
Sullivan acknowledges the power of Leviticus but deals with it by placing it in a relative context. What is the nature of this “abomination”? Is it like killing your mother or stealing a neighbor’s bread, or is it more like refusing to eat shellfish or having sex during menstruation? Sullivan suggests that all of these injunctions were written on the same moral level and hence can be accepted or ignored as a whole. He does not fully sustain this view, and in fact a refutation of it can be found in Prager’s essay. In Prager’s opinion and mine, people at the time of Moses, and for centuries before him, understood that there was a fundamental difference between whom you killed and what you ate, and in all likelihood people then and for centuries earlier linked whom you could marry closer to the principles that defined life than they did to the rules that defined diets.
The New Testament contains an equally vigorous attack on homosexuality by St. Paul. Sullivan partially deflects it by noting Paul’s conviction that the earth was about to end and the Second Coming was near; under these conditions, all forms of sex were suspect. But Sullivan cannot deny that Paul singled out homosexuality as deserving of special criticism. He seems to pass over this obstacle without effective retort.
Instead, he takes up a different theme, namely, that on grounds of consistency many heterosexual practices—adultery, sodomy, premarital sex, and divorce, among others—should be outlawed equally with homosexual acts of the same character. The difficulty with this is that it mistakes the distinction alive in most people’s minds between marriage as an institution and marriage as a practice. As an institution, it deserves unqualified support; as a practice, we recognize that married people are as imperfect as anyone else. Sullivan’s understanding of the prohibitionist argument suffers from his unwillingness to acknowledge this distinction.
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The second argument against homosexual marriage—Sullivan’s conservative category—is based on natural law as originally set forth by Aristotle and Thomas Aquinas and more recently restated by Hadley Arkes, John Finnis, Robert George, Harry V. Jaffa, and others. How it is phrased varies a bit, but in general its advocates support a position like the following: man cannot live without the care and support of other people; natural law is the distillation of what thoughtful people have learned about the conditions of that care. The first thing they have learned is the supreme importance of marriage, for without it the newborn infant is unlikely to survive or, if he survives, to prosper. The necessary conditions of a decent family life are the acknowledgment by its members that a man will not sleep with his daughter or a woman with her son and that neither will openly choose sex outside marriage.
Now, some of these conditions are violated, but there is a penalty in each case that is supported by the moral convictions of almost all who witness the violation. On simple utilitarian grounds it may be hard to object to incest or adultery; if both parties to such an act welcome it and if it is secret, what differences does it make? But very few people, and then only ones among the overeducated, seem to care much about mounting a utilitarian assault on the family. To this assault, natural-law theorists respond much as would the average citizen—never mind “utility,” what counts is what is right. In particular, homosexual uses of the reproductive organs violate the condition that sex serve solely as the basis of heterosexual marriage.
To Sullivan, what is defective about the natural-law thesis is that it assumes different purposes in heterosexual and homosexual love: moral consummation in the first case and pure utility or pleasure alone in the second. But in fact, Sullivan suggests, homosexual love can be as consummately as heterosexual. He notes that as the Roman Catholic Church has deepened its understanding of the involuntary—that is, in some sense genetic—basis of homosexuality, it has attempted to keep homosexuals in the church as objects of affection and nurture, while banning homosexual acts as perverse.
But this, though better than nothing, will not work, Sullivan writes. To show why, he adduces an analogy to a sterile person. Such a person is permitted to serve in the military or enter an unproductive marriage; why not homosexuals? If homosexuals marry without procreation, they are no different (he suggests) from a sterile man or woman who marries without hope of procreation. Yet people, I think, want the form observed even when the practice varies; a sterile marriage, whether from choice or necessity, remains a marriage of a man and a woman. To this Sullivan offers essentially an aesthetic response. Just as albinos remind us of the brilliance of color and genius teaches us about moderation, homosexuals are a “natural foil” to the heterosexual union, “a variation that does not eclipse the theme.” Moreover, the threat posed by the foil to the theme is slight as compared to the threats posed by adultery, divorce, and prostitution. To be consistent, Sullivan once again reminds us, society would have to ban adulterers from the military as it now bans confessed homosexuals.
But again this misses the point. It would make more sense to ask why an alternative to marriage should be invented and praised when we are having enough trouble maintaining the institution at all. Suppose that gay or lesbian marriage were authorized; rather than producing a “natural foil” that would “not eclipse the theme,” I suspect such a move would call even more seriously into question the role of marriage at a time when the threats to it, ranging from single-parent families to common divorces, have hit record highs. Kenneth Minogue recently wrote of Sullivan’s book that support for homosexual marriage would strike most people as “mere parody,” one that could further weaken an already strained institution.
To me, the chief limitation of Sullivan’s view is that it presupposes that marriage would have the same, domesticating, effect on homosexual members as it has on heterosexuals, while leaving the latter largely unaffected. Those are very large assumptions that no modern society has ever tested.
Nor does it seem plausible to me that a modern society resists homosexual marriages entirely out of irrational prejudice. Marriage is a union, sacred to most, that unites a man and woman together for life. It is a sacrament of the Catholic Church and central to every other faith. Is it out of misinformation that every modern society has embraced this view and rejected the alternative? Societies differ greatly in their attitude toward the income people may have, the relations among their various races, and the distribution of political power. But they differ scarcely at all over the distinctions between heterosexual and homosexual couples. The former are overwhelmingly preferred over the latter. The reason, I believe, is that these distinctions involve the nature of marriage and thus the very meaning—even more, the very possibility—of society.
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The final argument over homosexual marriage is the liberal one, based on civil rights.
As we have seen, the Hawaiian supreme court ruled that any state-imposed sexual distinction would have to meet the test of strict scrutiny, a term used by the U.S. Supreme Court only for racial and similar classifications. In doing this, the Hawaiian court distanced itself from every other state court decision—there are several—in this area so far.3 A variant of the suspect-class argument, though, has been suggested by some scholars who contend that denying access to a marriage license by two people of the same sex is no different from denying access to two people of different sexes but also different races. The Hawaiian Supreme Court embraced this argument as well, explicitly comparing its decision to that of the U.S. Supreme Court when it overturned state laws banning marriages involving miscegenation.
But the comparison with black-white marriages is itself suspect. Beginning around 1964, and no doubt powerfully affected by the passage of the Civil Rights Act of that year, public attitudes toward race began to change dramatically. Even allowing for exaggerated statements to pollsters, there is little doubt that people in fact acquired a new view of blacks. Not so with homosexuals. Though the campaign to aid them has been going on vigorously for about a quarter of a century, it has produced few, if any, gains in public acceptance, and the greatest resistance, I think, has been with respect to homosexual marriages.
Consider the difference. What has been at issue in race relations is not marriage among blacks (for over a century, that right has been universally granted) or even miscegenation (long before the civil-rights movement, many Southern states had repealed such laws). Rather, it has been the routine contact between the races in schools, jobs, and neighborhoods. Our own history, in other words, has long made it clear that marriage is a different issue from the issue of social integration.
There is another way, too, in which the comparison with race is less than helpful, as Sullivan himself points out. Thanks to the changes in public attitudes I mentioned a moment ago, gradually race was held to be not central to decisions about hiring, firing, promoting, and schooling, and blacks began to make extraordinary advances in society. But then, in an effort to enforce this new view, liberals came to embrace affirmative action, a policy that said that race was central to just such issues, in order to ensure that real mixing occurred. This move created a crisis, for liberalism had always been based on the proposition that a liberal political system should encourage, as John Stuart Mill put it, “experiments in living” free of religious or political direction. To contemporary liberals, however, being neutral about race was tantamount to being neutral about a set of human preferences that in such matters as neighborhood and schooling left groups largely (but not entirely) separate.
Sullivan, who wisely sees that hardly anybody is really prepared to ignore a political opportunity to change lives, is not disposed to have much of this either in the area of race or in that of sex. And he points out with great clarity that popular attitudes toward sexuality are anyway quite different from those about race, as is evident from the fact that wherever sexual orientation is subject to local regulations, such regulations are rarely invoked. Why? Because homosexuals can “pass” or not, as they wish; they can and do accumulate education and wealth; they exercise political power. The two things a homosexual cannot do are join the military as an avowed homosexual or marry another homosexual.
The result, Sullivan asserts, is a wrenching paradox. On the one hand, society has historically tolerated the brutalization inflicted on people because of the color of their skin, but freely allowed them to marry; on the other hand, it has given equal opportunity to homosexuals, while denying them the right to marry. This, indeed, is where Sullivan draws the line. A black or Hispanic child, if heterosexual, has many friends, he writes, but a gay child “generally has no one.” And that is why the social stigma attached to homosexuality is different from that attached to race or ethnicity—“because it attacks the very heart of what makes a human being human: the ability to love and be loved.” Here is the essence of Sullivan’s case. It is a powerful one, even if (as I suspect) his pro-marriage sentiments are not shared by all homosexuals.
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Let us assume for the moment that a chance to live openly and legally with another homosexual is desirable. To believe that, we must set aside biblical injunctions, a difficult matter in a profoundly religious nation. But suppose we manage the diversion, perhaps on the grounds that if most Americans skip church, they can as readily avoid other errors of (possibly) equal magnitude. Then we must ask on what terms the union shall be arranged. There are two alternatives—marriage or domestic partnership.
Sullivan acknowledges the choice, but disparages the domestic-partnership laws that have evolved in some foreign countries and in some American localities. His reasons, essentially conservative ones, are that domestic partnerships are too easily formed and too easily broken. Only real marriages matter. But—aside from the fact that marriage is in serious decline, and that only slightly more than half of all marriages performed in the United States this year will be between never-before-married heterosexuals—what is distinctive about marriage is that it is an institution created to sustain child-rearing. Whatever losses it has suffered in this respect, its function remains what it has always been.
The role of raising children is entrusted in principle to married heterosexual couples because after much experimentation—several thousand years, more or less—we have found nothing else that works as well. Neither a gay nor a lesbian couple can of its own resources produce a child; another party must be involved. What do we call this third party? A friend? A sperm or egg bank? An anonymous donor? There is no settled language for even describing, much less approving of, such persons.
Suppose we allowed homosexual couples to raise children who were created out of a prior heterosexual union or adopted from someone else’s heterosexual contact. What would we think of this? There is very little research on the matter. Charlotte Patterson’s famous essay, “Children of Gay and Lesbian Parents” (Journal of Child Development, 1992), begins by conceding that the existing studies focus on children born into a heterosexual union that ended in divorce or that was transformed when the mother or father “came out” as a homosexual. Hardly any research has been done on children acquired at the outset by a homosexual couple. We therefore have no way of knowing how they would behave. And even if we had such studies, they might tell us rather little unless they were conducted over a very long period of time.
But it is one thing to be born into an apparently heterosexual family and then many years later to learn that one of your parents is homosexual. It is quite another to be acquired as an infant from an adoption agency or a parent-for-hire and learn from the first years of life that you are, because of your family’s position, radically different from almost all other children you will meet. No one can now say how grievous this would be. We know that young children tease one another unmercifully; adding this dimension does not seem to be a step in the right direction.
Of course, homosexual “families,” with or without children, might be rather few in number. Just how few, it is hard to say. Perhaps Sullivan himself would marry, but, given the great tendency of homosexual males to be promiscuous, many more like him would not, or if they did, would not marry with as much seriousness.
That is problematic in itself. At one point, Sullivan suggests that most homosexuals would enter a marriage “with as much (if not more) commitment as heterosexuals.” Toward the end of his book, however, he seems to withdraw from so optimistic a view. He admits that the label “virtually” in the title of his book is deliberately ambiguous, because homosexuals as a group are not “normal.” At another point, he writes that the “openness of the contract” between two homosexual males means that such a union will in fact be more durable than a heterosexual marriage because the contract contains an “understanding of the need for extramarital outlets” (emphasis added). But no such “understanding” exists in heterosexual marriage; to suggest that it might in homosexual ones is tantamount to saying that we are now referring to two different kinds of arrangements. To justify this difference, perhaps, Sullivan adds that the very “lack of children” will give “gay couples greater freedom.” Freedom for what? Freedom, I think, to do more of those things that heterosexual couples do less of because they might hurt the children.
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The courts in Hawaii and in the nation’s capital must struggle with all these issues under the added encumbrance of a contemporary outlook that makes law the search for rights, and responsibility the recognition of rights. Indeed, thinking of laws about marriage as documents that confer or withhold rights is itself an error of fundamental importance—one that the highest court in Hawaii has already committed. “Marriage,” it wrote, “is a state-conferred legal-partnership status, the existence of which gives rise to a multiplicity of rights and benefits. . . .” A state-conferred legal partnership? To lawyers, perhaps; to mankind, I think not. The Hawaiian court has thus set itself on the same course of action as the misguided Supreme Court in 1973 when it thought that laws about abortion were merely an assertion of the rights of a living mother and an unborn fetus.
I have few favorable things to say about the political systems of other modern nations, but on these fundamental matters—abortion, marriage, military service—they often do better by allowing legislatures to operate than we do by deferring to courts. Our challenge is to find a way of formulating a policy with respect to homosexual unions that is not the result of a reflexive act of judicial rights-conferring, but is instead a considered expression of the moral convictions of a people.
1 Baebr, et al., v. Levin, 852 P.2d 44.
3 Minnesota refused a claim for a marriage license by two gay men even though the relevant state statute does not mention sex; the federal Ninth Circuit rejected a claim that Congress, in defining a spouse in the Immigration and Naturalization Act of 1982, meant to include same-sex spouses. In Pennsylvania a court refused to allow a same-sex couple to contract a common-law marriage. A Kentucky court did the same in the case of two lesbians applying for a marriage license, as did a Washington court in the case of two gay men. The District of Columbia Court of Appeals acted similarly (by a divided vote) in 1995.
