Following the US Supreme Court’s hearing of arguments for and against gay marriage has got me thinking on the subject. Obviously I’m rooting for my home team, the ‘mos. But I’m also intrigued by the hypocrisy in both the court’s conservatives and liberals—how both of them have partial strong arguments, but don’t want to see their arguments’ larger implications.
Ruth Bader Ginsburg—the Notorious RBG—has pushed her colleagues on the basic principle of fairness that applies here. If, per the Constitution, we want our laws to apply equally to people regardless of the particulars of their identity, then gay couples get to marry. Period. Appeals to the hetero-normative “tradition” of marriage are as spurious as appeals to the white supremacist tradition of same-race marriage. And as for the tired old line that marriage is about procreation—first, as it turns out, gay couples can procreate (as my lesbian housemates did just over a year ago), but second and more importantly, WHAT THE HELL ARE YOU TALKING ABOUT? As the Notorious RBG put it (quotes from the Guardian):
JUSTICE GINSBURG: Suppose a couple, a 70-year-old couple comes in and they want to get married.
JUSTICE GINSBURG: You don’t have to ask them any questions. You know they are not going to have any children.
We don’t apply the procreation criterion to straight couples; bringing it up when debating gay couples’ rights is farcical.
Justice Alito brings up a favorite objection to gay marriage: the slippery slope.
JUSTICE ALITO: If the…reason for marriage is to provide a lasting bond between people who love each other and make a commitment to take care of each other, I’m not – do you see a way in which that logic can be limited to two people who want to have sexual relations – …why that would not extend to larger groups, the one I mentioned earlier, two men and two women, or why it would not extend to unmarried siblings who have the same sort of relationship?
This tactic infuriates gay advocates when it’s used by less sophisticated conservatives; the latter like to say that expanding the definition of marriage to include gay couples will inevitably lead to marriages with animals, children, and inanimate objects. But Alito’s hypotheticals are more plausible, because adult siblings and adult polyamorous, uh, groups (triples?) are capable of giving consent, unlike children, dogs, and toasters. It’s also classy of Alito to ask whether marriage applies to people who don’t want to have sex with each other, rather than relying on implied gross-out imagery of men boning other men (and, inevitably I guess, underage toaster-dogs).
Alito’s right: there’s no good reason to extend marriage rights to monogamous gay couples but not to sextuples or non-romantic life partners. The government may have a compelling interest in granting special rights to people who are creating the basic social unit, a life partnership. But life partnerships aren’t necessarily heterosexual, or limited to two people, or romantic. There is no good reason for my parents to get tax breaks and the right to visit each other at the hospital but not my aunt and grandmother, who have lived together and supported one another during my entire life.
Of course, Americans and the Supreme Court are hardly ready to accept an expansion of the definition of marriage to include such a variety of partnerships. So we hit a dead end: RBG is right that it’s unfair to deny marriage rights to gay couples, and Alito is right that it’s equally unfair to deny marriage rights to other kinds of partners, but presumably neither of them is willing to seriously contemplate as broad an expansion of marriage as fairness demands.
Probably the solution will be to just arbitrarily draw a line in the sand: ‘This is marriage, this isn’t, because I said so.’ And probably that line will include romantic couples, regardless of gender combination, and no one else.
But what if we just abolished legal marriage? What if marriage granted no special rights and had no legal status? What if homophobic churches could define marriage as between a man and a woman, and progressive churches could define it as between two people (or seven people, or whatever)? What if we gave up trying to socially engineer, through the incentive of special marriage rights, what counts as a legitimate partnership of long term mutual support?
I’m not holding my breath. But this seems like one instance of a social problem where we might all be happier if we just stopped trying to tell each other what to do.