It is clear to anyone even remotely aware of the debate over the definition of marriage that this is a debate that is infused with religious issues. Proponents of the redefinition of marriage frequently point out that one person’s religion has nothing to do with another person’s rights or they offer an interpretation of religioun (whether Christian or otherwise) that allows, encourages, or at least does not condemn homosexuality. Opponents of the redefinition counter these arguments with appeals to the Bible or religious tradition. Quite frankly, while I am unapologetically a conservative evangelical Christian, I cannot help but wonder if this whole issue might be better resolved in the public square without these explicitly religious arguments. Before I am harpooned in the comments section below, let me explain: the fact that there is so much disagreement on the religious aspects of this issue, it is clear that we are talking past one another and this issue obviously demands a much more immediate public response than is possible if we stop to “define terms” so that we are all discussing the same issues on a level playing field. That being said, the religious arguments are extremely important because they are reflections of core beliefs of almost every religious tradition. One’s view of marriage, gender, sex, and family reflects and impacts one’s understandings of the nature of God, the nature of man, the nature of sin, and many other fundamentals of the faith. In the spirit of (mostly) leaving behind religious considerations, I attempt here to articulate a non-religious case for man-woman marriage to the exclusion of same sex marriage.
As a preliminary concern, we must keep in mind that in order for a governmental power to enact law, the government must have two things: the proper authority and a public purpose. Proper authority springs from the source of authority—for example, the Constitution. In order for Congress to act, its action must have a constitutional basis. The Constitution must contain a provision that authorizes the action. Public purpose springs from some interest that serves our society as a whole and members of society in particular. Public interests are ultimately rooted in the natural rights of the individual. We all have an interest in national defense, for example. So, a law passed by Congress that spends tax money to build aircraft carriers is a proper exercise of governmental power because the Constitution allows Congress to “raise a Navy” and our interests in “life, liberty, and the pursuit of happiness” are served by the peace that national defense offers.
What interest, then, does the government have in defining or regulating marriage? There is no doubt that governments issue marriage licenses according to their own specifications, define the obligations of spouses to one another, and even exercise authority over the dissolution of the relationship and the way in which private property is managed in the process. The legal principles that give governments the proper authority are varied in our country because states regulate marriage. Therefore, there are no fewer than fifty proper sources for this authority. The public interest, however, is universal. The singular thread that runs through all marriage regulations is children. Marriage is presumed to be the relationship that produces children and is the institution that links a child to one mother and one father. “Mother” and “father” are not designations that are rooted in law. They are rooted in biology. In this, the legal framework simply reflects biological reality. No child has ever existed that is not the product of some interaction (even if it is by proxy in a petri dish) between one man and one woman. Marriage recognizes that reality by assuming that the man and woman “interacting” to produce children will be the ones who have entered into the marriage.
A relationship, then, that is prima facie incapable of producing children is one that the government has no interest in regulating in this way. It is a biological impossibility for two men or two women to produce a child no matter what the law may say. Even if a child is born and the law imposes upon that child two fathers, it is a biological fact that there is still a mother somewhere, no matter how distant or disinterested and that only one of the legal fathers is also a biological father. By doing this, we elevate a legal fiction above a biological fact.
Opponents, however, raise two objections at this point. First, they point out that a seventy-five year old man and a seventy-five year old woman cannot enter into a marriage that has hope of producing children. I am willing to accept this as a biological fact, but in this case, there is a related legal fiction that applies. The law has been reticent from time immemorial to draw bright lines where it is impossible to draw bright lines. While this above example may present a sterile relationship, what, then, is the line? What is the age at which we can say with confidence all people will become infertile? We can’t draw that line, so the law has always drawn that line at death. This is extremely important in the field of property law and the production of heirs as well as the rules of secession in monarchies. Allowing two sterile adults to marry does not serve the public interest of linking children to parents, but it does no harm because it does not demand the restructuring of the public institution to accommodate the relationship.
Second, opponents point to adoption. In adoption, non-biologically related children and parents are legally linked together despite the fact that the child is biologically related to only one or neither of the legal parents. The problem with this critique, however, is that adoption is a child-centered institution that presumes the priority of biological parentage. The law requires that the rights of biological parents be severed before the law will recognize adoptive parents. Adoption is designed to give children the parents that they need and not to give parents the children they want or believe that they deserve.
Another issue that should be considered at this point is whether or not the concept of marriage maintains any integrity if it is redefined. No argument that is used in favor of same sex marriage is logically inconsistent with the case for polygamy, polyamory, incest, pedophilia, or bestiality. One argument begins with the definition of “marriage” as simply an intimate and emotional relationship. Historically, marriage has been understood as a fruitful relationship that is the context for building a family, which is the building block of society. In marriage is denigrated into being an intimate and emotional relationship, what is there to limit this to only two people? What standard makes it immoral to bar marriages between adults and children or between brothers and sisters? Without a clear definition of marriage that revolves around the definition of “mother” and “father”, there is then no clear definition of “son”, “daughter”, or “cousin.” The family is not strengthened by this definition. It is, rather, muddled and frayed.
Allow me to restate again that for me, my religious convictions are of foremost priority, but they do not create blindness. The positions that I have stated above are positions that even the non-religious can surely understand and engage unemotionally. Until we can discuss these issues openly and in terms that are consistent, we can’t make progress.