Contrasting Views of Marriage (Part 2): The Need for a Defining Principle
This reductio of the revisionist view-that it eliminates any principled difference between marriage and simple companionship-is not just of academic interest. If the law promotes and our culture absorbs a view of marriage that undermines the principled basis for its stabilizing norms, those norms will decline (even more) in practice.
The Revisionist View Undermines Marital Norms
That the revisionist view undermines marital norms in practice as well as theory is increasingly confirmed by the rhetoric and arguments of its advocates, and by the policies they are led by the force of logic to embrace.
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Writing in Ethics, philosopher Elizabeth Brake supports "minimal marriage," in which "individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each."
Three hundred "LGBT and allied" scholars and advocates, including major figures such as Gloria Steinem and Kenji Yoshino, call for legally recognizing multiple-partner sexual relationships, and even nonsexual bonds.
In Brazil, a public notary has recognized a trio as a civil union. Mexico City has considered expressly temporary (renewable) marriage licenses. The Toronto District's school curricula treat polyamory as among the valid forms of family structure.
In a New York Times Magazine profile, Dan Savage encourages spouses to adopt "a more flexible attitude" about sex outside their marriage. The Advocate is even more candid:
[Conservatives] have long insisted that allowing gays to marry will destroy the sanctity of 'traditional marriage' . . . [W]hat if . . . [they] are right? Could the gay male tradition of open relationships actually alter marriage as we know it? And would that be such a bad thing?
A San Francisco State University study covered by The New York Times finds precisely the tendency toward "openness" in same-sex marriages that critics predicted.
Notable SSM advocates have even embraced the goal of weakening the institution in these very terms. "[Former President George W.] Bush is correct," says Victoria Brownworth, ". . . when he states that allowing same-sex couples to marry will weaken the institution of marriage. . . . It most certainly will do so, and that will make marriage a far better concept . . ."
According to writer and same-sex marriage supporter Masha Gessen:
Fighting for gay marriage generally involves lying about what we are going to do with marriage when we get there-because we lie that the institution of marriage is not going to change, and that is a lie. The institution of marriage is going to change, and it should change. . . . I don't think it should exist. . . I have three kids who have five parents, more or less, and I don't see why they shouldn't have five parents legally. . . I don't think that's compatible with the institution of marriage.
I do not know where you stand on these matters, but if you believe we should abandon only the norm of sexual complementarity, leaving the rest intact, could you please respond to points (1)-(5) above, by identifying the ground of principle for these other aspects of marriage, and explaining why Brake, Steinem, Savage, Gessen, and the rest are wrong?
The Legacy of Griswold v. Connecticut
To answer your questions:
Griswold (like Roe, Lawrence, and the other cases relying on it) was wrongly decided. Whatever one thinks of the public policies these decisions put in place, these decisions are Lochner-like examples of the judicial usurpation of the constitutional authority of the people and their representatives. Even liberal constitutional scholars, such as Yale's Akhil Amar, freely admit the nearly embarrassing poverty of Griswold's reasoning.
The right that the Court euphemistically and disingenuously called "marital privacy" cannot be found anywhere in the text, logic, structure, or historical understanding of the Constitution. The justices claimed to discover it in "penumbras formed by emanations" from various constitutional guarantees-including the prohibition against quartering soldiers in private homes in peacetime. Imagine how liberals would howl if a conservative Court claimed to find a constitutional right of children to be reared by a married mother and father, or protected from abortion, in "penumbras formed by emanations." As the Court's leading civil libertarian of the time, Hugo Black, noted in dissent, the majority was doing for liberal beliefs about sex exactly what liberals had castigated conservatives for doing in the cause of laissez-faire economic beliefs in Lochner.
Romer was wrongly decided as well. In our system, municipal power is derivative of sovereign state power. So the laws of municipalities are subject to being revised if the people of the state regard them as unwise, unjust, or contrary to public morality. So, for the reasons spelled out in Justice Scalia's dissent, Romer is another case of Lochnerizing. Just as conservatives were wrong to impose their policy preferences via the judiciary in the Lochner era, social liberals are wrong to do it now.
Although I believe that ordinary contract and trust law provide the tools required to meet the legitimate needs of non-marital domestic partners, be they platonic or otherwise, I have no objection in principle to civil-unions schemes that, in order to avoid compromising the meaning and social significance of marriage, do not predicate eligibility for participation on the existence or presumption of a sexual relationship between partners. If sharing and caring give rise to certain needs that we need public policy to address, that policy should be independent of marriage law and cover sharing and caring partners of any type. I testified in support of such a "neutral unions" proposal in the New Jersey legislature. It was opposed by social liberals.
Why? Because their objective was to abolish from law and culture the idea that there is something distinctive (and even intrinsically valuable) about the particular form of sexual partnership-historically known as "marriage"-that brings together a man and woman as husband and wife to be father and mother to any children born of their union, conferring on those children the blessing of being reared in the stable bond of the man and woman whose love brought them life.
