Human beings are “teleologizing” creatures. That is to say: we like to understand the phenomena that we encounter in the world as coming to us with built-in functions or purposes; as being “for” something. As extensive psychological research has shown, this is a bias that comes to us naturally. For instance, young children freely describe mountains as “for climbing” or babies as “for loving,” and even prefer explanations of the existence of such entities in terms of these functions. Somewhat more subtly, the bias remains in adults, intensified when they do not deliberate carefully, and, fascinatingly, when suffering from conditions like Alzheimer’s that cause them to forget much of what they once knew. It has even been found residually in professional scientists.
At the same time, human beings are also “essentializing” creatures. That is to say: we have a tendency to view things as having the features they have inherently and unchangeably, even when these features are demonstrably contingent aspects of the particular social world that we happen to inhabit. Again, children provide very striking examples—in one study, they judged that boys would prefer playing with trucks to playing with dolls even if they were raised on an island otherwise only populated by women. But social attitudes to gender, race and sexuality make it clear that this bias is, once again, not confined to children.
The tendency to teleologize and to essentialize can come together to form a dangerous cocktail. Regarding a social institution like marriage, we have a tendency to teleologize—to think, as the title of this symposium seems to implicitly take for granted, that there is something that marriage is “for.” On its own, that might not be such a dangerous thing. After all, marriage is a social institution that was created intentionally, for particular reasons—unlike mountains—and has a certain kind of existing social function. That existing social function, however, is not something of obvious normative significance, or indeed something that we should not feel free to reform and change as we please. But then our essentializing tendency kicks in, and we start to view marriage’s existing social function as constituting something like its essence, thinking of contingent social arrangements as something unchangeable.
This tendency pollutes the gay marriage debate. So, we find people arguing against gay marriage on the grounds that a same-sex union simply cannot be a “real marriage,” since it is part of the essence of marriage that it excludes gay people. The sometimes almost rueful tone of such proclamations reminds me a bit of the kind of power-tripping institutional or bureaucratic official that everyone has encountered at some point in their life: “Sorry, I’d love to help you, but I’m afraid them’s the rules.” It’s nothing against gays, we’re told: it’s just that marriage inherently excludes them. And we can’t do anything about that. It’s a strange argument: even granting the dubious premise about the essence of marriage, it’s unclear what’s so bad about violating an essence. If the social institution of marriage fails to match its supposed timeless essence, what exactly is supposed to happen that is so bad? Is fire going to rain down on us as a consequence? Well, maybe so, if the argument is grounded upon the idea of marriage’s essence as ordained by God—indeed, this is the context in which talk of an essence of marriage makes most sense—but the arguments in question tend to at least to pretend to secularity (though they have a funny coincidence of coming out of the mouths of strongly religious people).
What is certainly true, less ambitiously, is that the word “marriage” and its associated concept have a particular meaning, one that clearly did not include gay marriages, say, fifty years ago. But concepts and words are constantly changing and evolving—that of marriage being no exception throughout history—and those of the late twentieth century have no special metaphysical or moral significance.
Arguments to the contrary reflect an obsession with categories and a misplaced belief that normative conclusions can fall out of the meanings of words. Here’s another example: when Christopher Cox wrote a great piece in Slate about why vegans (and vegetarians) should be happy to eat bivalves such as oysters, the comments were flooded with angry responses to the effect that vegans should not do this because the word “vegan” just means that you don’t eat any animals. But the question of moral relevance is obviously not, “is this behavior covered by the meaning of the English word ‘vegan’?” but rather, “do the general reasons for being vegan carry over to refraining from eating bivalves?” Similarly, even if we grant that “marriage” means (or, more accurately by this point, once meant) something that could only take place between a man and a woman, the question at stake for public policy is not, “are gay unions included under the ‘original’ meaning of the word ‘marriage’?” but rather, “do the general reasons for the state to sanction the institution of marriage carry over to gay unions?”
And here I think the answer is a resounding “yes.” Gay marriages can be just as loving and, yes, permanent, as straight ones; and there is no evidence to support the prejudiced assumption that they are worse environments in which to raise children. But even if there were evidence to the contrary, that still wouldn’t be enough to secure the argument for the anti-gay marriage lobby. Consider the following analogy: suppose that, in some particular society, there is a general statistical trend that suggests that marriages within a particular racial group were less permanent, and provided less stable environments in which to raise children, for whatever reason. Would the state then be justified in banning marriages between members of these racial groups? Surely not. The point this reveals is that sometimes particular statistical trends about social groups do not justify the imposition of injustices on individual members of those particular groups. Most simply, not every member of the group will conform to the statistic, and it is an injustice to punish them for it.
It will be objected that lack of access to marriage is not an injustice, since there are other ways to afford gay people the same protections under the law that straight people get. So-called moderates concede civil partnerships without endorsing gay marriage. So, for example, Justin Welby, the Archbishop of Canterbury and head of the Anglican church, has tried to put the anti-gay marriage point in a characteristically evasive and wooly faux-liberal manner, insisting in his speech to the U.K. Parliament that the gay marriage bill “assumes that the rightful desire for equality … must mean uniformity, failing to understand that two things may be equal but different.” Shamefully, the otherwise wonderful Liberal Democrat grandee Shirley Williams has echoed his sentiments almost exactly.
The problem with the “different but equal” reasoning, however, is that it ignores the ways in which difference is felt and experienced as inequality. Let’s try another thought experiment. Famously, during segregation in the Southern states of the U.S., black people had to sit at the back of buses. This was considered an outrage. Now let us imagine how the Welby-Williams reasoning would apply in such a scenario. “Well,” our Welby-Williams counterpart would say, “we totally understand why you’re angry. After all, being at the back of the bus gives you differential access to the front doors of the bus. It means you have to walk for longer after getting on and before getting off, and your seats aren’t as comfortable. These are clearly the harms you’re objecting to—and we agree with you! So we’ve come up with a solution. Instead of putting the white people at the front of the bus and the black people at the back, we’ll put the white people on the left of the bus and the black people on the right! The seats will be of the same quality, and they’ll be in equal proximity to the front doors. There we go; problem solved—different but equal.”
Obviously, this spectacularly misses the point. The very act of separating two races is in itself discriminatory, divisive and “otherising”: it doesn’t matter if the seats are the same. And likewise with designating gay and straight unions with “different but equal” legal standing. Given this, the burden is on the opponent of gay marriage to explain the positive reasons for separating gay and straight marriage. Of course there is a difference between being gay and being straight— but there is also a difference between being tall and being short, or being blonde or brunette. The question is whether the difference is sufficient to necessitate a differential legal arrangement. And a mere registering of some difference is not enough to answer it. The fundamental point which gets returned to when this challenge is broached is that gay sex does not and cannot involve procreation. As Welby puts it, the proposal to allow gay marriage is actually a proposal to “abolish” marriage, because “the concept of marriage as a normative place for procreation is lost.” I’m not sure what a “normative place” is (though it sounds like a lovely place to procreate), but it is obvious from a moment’s reflection that the current concept of marriage does not designate it exclusively for procreation, since marriages between heterosexuals who cannot have children, or who deliberately choose not to have children, are legal.
Even if you ignore all of that, though, why on earth should marriage be so closely tied to procreation? The world is not in urgent need of more procreation—far from it. And it can’t have anything to do with the need to provide stable environments for children to be raised, since one can raise children without procreating, through adoption or IVF, and in any case the legal questions of gay adoption and IVF rights are entirely separate from those of gay marriage legislation. So we are simply returned to the essentialism with which we began—marriage just is about procreation (or, the kind of sex that can result in procreation); that’s its essence!
More complicated but equally (if not more) unpersuasive are the attempts by Sherif Girgis, Ryan T. Anderson and Robert P. George in a recent book to explain why these other non-procreating heterosexual relationships can be marriages, because they still involve heterosexual sex, which has the so-called telos of producing children. Even if, um, you do everything in your power to prevent it from ending in that result, you’re still aimed at having babies, apparently. Coyly, Girgis et al. talk of the “distinctive bond” that, as they call it, “coitus” involves, which is really just a way of elevating their own sexual preferences to the status of quasitranscendental truths about the form of the good.
As I have already argued, we should show this so-called essence of marriage—which one might suspect is really just an ahistorical way of talking about the conception of marriage we happen to have had in the recent past—no respect at all until someone shows us what its tangible value is. In the meantime, we should define our social conception of marriage in response to the considerations that matter to us, not try to deduce what matters from some supposed metaphysical essence.
This is not, it bears stressing, to say that all values are relative to how we think of them. On the contrary, it is precisely by giving up the idea that we should be led by marriage’s “essence” in formulating legal rules that we make room for evaluating different possible arrangements against moral standards. Here there is an analogy with positivist accounts of the law. In jurisprudence, positivism is the view that what the law says is simply a matter of actual statute and precedent—the question of whether something is legal comes down to this, and not to moral questions. Sometimes anti-positivists accuse positivism of being an amoralist position, but nothing could be further from the truth. On the contrary, it is positivism that makes room for normative criticism of the law, rather than pretending that fundamentally the law always reflects morality. Similarly, the view that marriage just is whatever we choose to make it in no way implies that there are not better and worse ways for it to be.
The essentialist view, by contrast, seems in the final analysis to rest upon a desire to preserve a particular conception of marriage for ultimately religious reasons. The reason that many anti-gay marriage campaigners won’t be up front about this is that they recognize that many Americans think of religion as an inadequate basis for public policy. This attempt to enforce religious preferences on others is an instance of the ever-more ubiquitous practice of claiming the right not to have others around you do things that you don’t like. Of course, once you allow these rights into your system of rights, they make rights meaningless, since for every right you can name, there’s a corresponding and apparently counterbalancing right of this kind.
For the right to free speech, there’s the right not to have other people say things you don’t like. For the right to free choice over your body, there’s the right not to have other people do things with their bodies that you disapprove of. And yes, for the right to religious worship, there’s the right not to have other people worship gods you don’t believe in. Rights, then, lose all their meaning: everything is a tie. Given such a permissive notion of a right, rights-discourse becomes just a way of dressing up any disagreement or basic conflict of preference whatsoever. This is likewise the implicit reasoning behind the idea that when someone else gets married to someone of a gender you don’t want them to marry, it’s an infringement of your religious freedom. This is rubbish: your religious freedom extends to your own practices, not your ability to enforce that religious conception on others. (I’m reminded here of a popular Facebook group, back in the day when people were members of Facebook groups just for the sake of it, called “Don’t like gay marriage? Then don’t get one.”) More subtly, and perhaps more interestingly, I think it can also be seen in the small but non-negligible minority of gay people that oppose gay marriage.
Here the idea is often (if not always) that if gay marriage is legalized, it will become the norm for gay relationships, “forcing” them to adapt themselves to conventional standards associated with heterosexual relationships. But this seemingly radical point is really just the same old “right not to have others do things you don’t like.” If it transpires that the majority of gay people in relationships get married, that will be because they have chosen to do so. For those who don’t like that, and prefer a gay relationship which doesn’t subscribe to such traditional norms, they are free not to subscribe to them and not to get a gay marriage, but if others choose differently, that’s tough: again, there’s no right not to have others do things you don’t like. Indeed, at the point when this reasoning is offered as a reason not to legalize gay marriage, it is the opponent of gay marriage that is the one trying to enforce their conception of what a gay relationship should be like on others. The inherent traditionalism of marriage might be a reason not to have a gay marriage; it is not a reason not to allow others to choose whether to have one. We elide that distinction at our peril.
Art credit: Steven Miller, “Blood Oath,” 2012