Same-Sex "Marriage" Is Not a Civil Right
James W. Skillen
This article originally appeared in the Public Justice Report the Second Quarter of 2004.
A gay-marriage advocate in Boston explained to a radio reporter that marriage is a civil matter, not a church affair. Those who want church weddings can have them, but marriage is a matter of civil law. And since it is unconstitutional to deny equal civil rights to citizens, it is unconstitutional to deny to homosexual couples the right to marry.
At this important moment in the U.S. debate over same-sex "marriage" and the likelihood of a long campaign to try to add a marriage amendment to the Constitution, it is important to evaluate the grounds of the arguments. In particular, we need to be clear about what constitutes a civil right.
It is certainly true that the contention over marriage is about civil law. Marriage law has long been a state matter, and in the United States that has meant, literally, a state rather than a federal matter. In any case, the law has until now taken for granted that marriage is an institutional bond between a man and a woman. Moreover, marriage is something people of all faiths and no faith engage in. Churches, synagogues, and mosques may bless marriages but they do not create the institution. In that sense the question of marriage is not first of all a religious matter in the sense in which most people use the word "religion."
However, to insist that the question of marriage is a matter of civil law and not first of all a religious matter does not take us very far. After all, the argument is about what government ought to do about keeping or changing the legal definition of marriage. The debate is not between husbands and wives within the bond of traditional marriage—like a court case over divorce and child custody. No, this debate is about whether the law that now defines marriage is itself good or bad, right or wrong. And to join that debate one must appeal, by moral argument, to grounds that transcend the law as it now exists. In that regard, the question of marriage is not about a civil right at all. It is about the nature of reality and interpretations of reality that precede the law.
Those who now argue that same-sex couples should be included, as a matter of civil right, within the legal definition of marriage are appealing to the constitutional principles of equal protection and equal treatment. But this is entirely inappropriate for making the case for same-sex "marriage." To argue that the Constitution guarantees equal treatment to all citizens, both men and women, does not say anything about what constitutes marriage, or a family, or a business enterprise, or a university, or a friendship. An appeal for equal treatment would certainly not lead a court to require that a small business enterprise be called a marriage just because two business partners prefer to think of their business that way. Nor would equal treatment of citizens before the law require a court to conclude that those of us who pray before the start of auto races should be allowed to redefine our auto clubs as churches.
The simple fact is that the civil right of equal treatment cannot constitute social reality by declaration. Civil rights protections function simply to assure every citizen equal treatment under the law depending on what the material dispute in law is all about. Law that is just must begin by properly recognizing and distinguishing identities and differences in reality in order to be able to give each its legal due.
One kind of social relationship that government recognizes, for example, is a free contract by which two or more parties agree to carry out a transaction or engage in some kind of activity. Let's say you contract with me to paint your house. The law of contract does not define ahead of time what might be contracted; it simply clarifies the legal obligations of the contracting parties and the consequences if the contract is broken. Governments and lawyers and the law do not create the people, the house, the paint, and my desire to paint your house for a price that you want to pay. The point is that even in contract law, the law plays only a limited role in the relationship. The law encompasses the relationship only in a legal way.
If someone wants to argue that two people who have not in the past been recognized as marriage partners should now be recognized as marriage partners, one must demonstrate that marriage law (not civil rights law) has overlooked or misidentified something that it should not have overlooked or misidentified. For thousands of years, marriage law has concerned itself with a particular kind of enduring bond between a man and a woman that includes sexual intercourse—the kind of act that can (but does not always) lead to the woman's pregnancy. A homosexual relationship, regardless of how enduring it is as a bond of loving commitment, does not and cannot include sexual intercourse leading to pregnancy. Thus it is not marriage.
The much disputed question of whether same-sex relationships are morally good or bad, healthy or unhealthy, is beside the point at this stage of legal consideration. The first question is about identity and difference. This is the material legal matter of properly recognizing and identifying what exists and distinguishing between marriages and auto clubs, between schools and banks, between friendships and multinational corporations. It has nothing to do with civil rights.
To recognize in law the distinct character of a marriage relationship, which entails sexual intercourse, involves no discrimination of a civil rights kind against those whose bonds do not include sexual intercourse. Those who choose to live together in life-long homosexual relationships; or brothers and sisters who live together and take care of one another; or two friends of the same sex who are not sexually involved but share life together in the same home—all of these may be free to live as they do, and they suffer no civil rights discrimination by not being identified as marriages. There is no civil rights discrimination against an eight-year-old youngster who is denied the right to enter into marriage. There is no civil rights discrimination being practiced against a youngster who is not allowed the identity of a college student because she is not qualified to enter college. There is no civil-rights discrimination involved when the law refuses to recognize my auto club as a church. A marriage and a homosexual relationship are two different kinds of relationships and it is a misuse of civil rights law to use that law to try to blot out the difference between two different kinds of things.
The question behind marriage, in other words, is a structural one that precedes lawmaking. The argument about the structural identity of marriage is not a legal argument about how people should be treated within the bonds of that structure. Rather, it is about whether homosexual relationships should be identified as having the structure of marriage, and only after that can civil rights considerations emerge about how citizens should be treated fairly with respect to marriage.
Those who want homosexual relationships to be redefined as marriages say that many aspects of their relationships are like marriage—having sexual play, living together, loving one another, etc.—and therefore they should be allowed to call their relationships marriages and should be recognized in the law as marriage partners. But this cannot be a proper legal matter until the empirical case has been made that a homosexual partnership and a marriage are indistinguishable. Otherwise, the appeal amounts to nothing more than a request that homosexual partners be allowed to call themselves what they want to call themselves regardless of the differences that exist in reality. The answer they want is for law making and adjudicating authorities to change the law based on the principle that reality is defined by the will and declarations of individuals, all of whom should be treated without discrimination.
But here, you see, is the sleight of hand. The appeal now being made for homosexual marriage rights is not an appeal for judges and lawmakers to reconsider past empirical judgments about similarities and differences between heterosexual and homosexual relationships. Rather, it is an appeal for judges and lawmakers to ignore those distinctions in order not to deny citizens the right to call things what they want to call them. It is a version of an appeal for the protection of free speech, and in this case it is a demand that the speech of particular persons carry the authority to define the structure of reality without regard to the basis of past legal judgments. The antidiscrimination principle is appealed to not in order to show that some married couples have previously been denied the recognition of their marriage. Rather the antidiscrimination principle is being used to ask that no citizen be denied the right to call something what he or she wants to call it.
If homosexual relationships are, in this manner, legally recognized as marriages, no realities will change. Heterosexual marriage partners will still be able to engage in sexual intercourse and potentially procreate children; homosexual partners will still not be able to engage in such intercourse. Pregnancy will still be possible only by implanting a male sperm in a female egg, whether that is done by sexual intercourse inside or outside of marriage, or by in vitro fertilization, or by implanting male sperm in the uterus of a woman not married to the man whose sperm are being used. The only thing that will change is that the law will mistakenly use the word "marriage" to refer to two different kinds of sexually intimate human relationships.
If this happens, we will need to pay close attention to the consequences. Judges and public officials will then be required to recognize as a marriage any sexually Intimate bond between two people who want to call themselves married. Which means that there will no longer be any basis for distinguishing legally between a heterosexual union and a homosexual relationship. Which means henceforth that there will be no legal basis for restrictions against a homosexual couple obtaining children in any way they choose, for such restrictions would constitute discrimination. And it will mean that when a mature mother and son, or father and daughter, or trio or quartet of partners come to the courts or to the marriage-license bureau to ask that their sexually active relationship be recognized as marriage, there will be no legal grounds of a non-arbitrary kind to reject the requests. Because if it is now arbitrary and unjust to recognize heterosexual marriage as something exclusive and different from homosexual relationships, then it will be arbitrary and unjust not to grant the request of other partners to call their sexually intimate and enduring relationships marriage.
But, of course, since legal declarations cannot turn reality into something it cannot become, a variety of conundrums, contradictions, and anomalies will inevitably arise. And the only way to resolve them will be to revise the law so it squares with, and does justice to, reality. If, that is, anyone is interested in crafting the law to do justice to reality.