Higamus, Hogamus. . . Reflections on Gay Marriage

 

Hogamus higamus, men are polygamous;

higamus hogamus, women monogamous.

—Ogden Nash

Somewhere in a comment thread over the last couple of weeks a critical reader wondered why none of us here were weighing in with thoughts or comments on the New York legislature’s vote to legalize gay marriage.  Look mister, I thought to respond, you’re just trying to stir up trouble, aren’t you?  Can’t you just leave well enough alone?

Gay marriage is one of those “icky” social issues, like abortion, that no one much wants to talk about plainly or directly, in part because they seem beyond the realm of rational persuasion.  The whole problem of the “culture wars,” Midge Decter observed a long time ago, is that they are mostly matters of the heart, and when matters of the heart become political, they become a fight to the death.  Much more fun and useful to fight about a calm and rational subject, like global warming.  (Heh.)

Let’s employ the mode William F. Buckley often used in his column and offer “several observations” about the matter, and a story or two.  First, the one thing to be said in favor of the New York decision is that it was done by a vote of the legislature, a politically accountable branch of government, rather than imposed by judicial fiat through a strained construction of the “Cosmic Justice clause” “Equal Protection” clause of the 14th Amendment.  New York’s path is how democracies ought to enact social changes of this kind, and indeed this is how most conservatives and libertarians have been saying the matter should be resolved for some time now, which explains the relative quiescence of many conservatives about New York’s vote.  We’ll see if this becomes an issue in any individual legislative elections next year in New York.  It is worth noting that in heavily Democratic Maryland, what looked like certain passage of gay marriage legislation fell short at the last minute amidst the reservations of certain blocks of otherwise liberal-minded legislators (Catholics, African-Americans).

Second, what happens now, assuming that the New York vote is indicative the gradual spread of gay marriage throughout most states?  (Public opinion surveys indicate growing—though not yet majority—acceptance of the idea.)  One of the obvious points about the institution of marriage is that it is coeval with civilization itself; that is, the institution of marriage predates the establishment of positive law on marriage, which is why it was regulated primarily throughout human history through religious institutions and rituals.  I think gay marriage might lead to a renewed emphasis on its religious tradition among heterosexuals.  In other words, marriage may be essentially privatized over time, with churches—especially conservative denominations—emphasizing the essential differences between traditional heterosexual marriage and all the other forms that will parade under the banner of marriage—perhaps even imposing some higher requirements or commitments of prospective couples before a marriage will be blessed.  (Something of this has already occurred with Louisiana’s law offering the option of a “covenant marriage” which imposes a higher bar for subsequent divorce, etc.)  The point is, many churches will refuse to bless gay unions, and some will go so far as to say explicitly that gay marriage is not marriage.

I ran this thought by the National Journal’s Jonathan Rauch over dinner a couple years ago.  Rauch is one of the leading proponents of gay marriage (in fact he wrote a book on the subject, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America), and is married to his partner in DC.  Jonathan is someone with whom you can have a calm and reasonable argument about gay marriage, as you can about most any subject for that matter.  (He thinks, by the way, that the California litigation that threw out the ballot initiative that banned gay marriage was a very bad idea—for gays.)  He did not take offense at my saying I wasn’t keen on gay marriage.  But he said he thought it would be a shame if marriage became privatized in the way I suggested, thinking I suppose that the stratifications and distinctions such a regime would entail would be to the disadvantage of gay couples.  Perhaps so; it is possible to imagine gay married couples being regarded with the same kind of stigma now bestowed on cigarette smokers.

This raises a further observation and prediction.  I think some of the energy behind the demand for gay marriage arises as much from a desire for recognition as much as the usual egalitarianism.  Some of my old lefty-hippie friends from the sixties find the whole gay marriage controversy bemusing, since the countercultural left of the sixties disdained the authoritative state recognition of marriage as “just a piece of paper.”  But now suddenly for people on the left that “piece of paper” is thought crucial to the proper recognition of their social status.  This isn’t just about legalities: the legitimate legal arguments about property, inheritance, insurance benefits, and other legal impediments gay couples face could be solved in many other ways short of changing the positive law of marriage.

If this is partly the case, then we can predict that after an initial flurry, the number of gay marriages may tail off.  The social scientist in me is going to be very interested in seeing the data on gay marriages twenty or thirty years down the road, and see how they match up with the divorce and child-rearing statistics of heterosexual marriage (which, let’s face it, haven’t looked so hot over the last couple generations).  That will start a whole new argument; one can envision the equivalent of a “Moynihan Report” on gay marriage 25 years from now that will ruin an academic or political career.

Meanwhile, I have been waiting for the next shoe to drop before commenting on this issue, but I didn’t think it would happen as quickly as it has.  A polygamist has brought a lawsuit in federal court arguing that laws against polygamy should be struck down on the very same “right to privacy” grounds that the Supreme Court struck down state sodomy laws in the 2003 Lawrence v. Texas case.  What, exactly, is the argument against polygamy if gay marriage is justified not simply on an expansive “right to privacy,” but also, as Justice Kennedy notoriously put it in his famous “mystery-of-the-universe” clause that each individual has the right to pursue their “own concept of existence, of meaning, of the universe, and of the mystery of human life”?  Law professor and uber-blogger Ann Althouse comments, “I think the Lawrence-based argument for decriminalizing polygamy is much stronger than the Lawrence-based argument for requiring the government to give legal recognition to same-sex marriage.”  Gay marriage advocates always dismissed the question of why gay marriage wouldn’t open the door to a revival of polygamy as absurd whenever it is brought up, ignoring that polygamy has a much longer record in human history than gay marriage—indeed it is still widely accepted in the Islamic world.  Further, what, exactly, is the argument against polygamous gay marriage?

The first Republican Party platform of 1856 said that the main object of the new party was to rid the nation of “the twin relics of barbarism, polygamy and slavery.”  The argument at that time was that the “barbarism” of both “peculiar institutions” rested on the same ground—both are an affront to human equality.  In the simplest terms, if one man is to have more than one wife, some other man will have none.  Why should we care about this?  Well, check in with China in a few years, where the widespread practice of sex-selective reproduction favoring males (where are the global feminists on this, by the way?) is leading to a major demographic distortion that will surely have significant social consequences.

It will be interesting to see what contortions that the courts and gay marriage advocates will employ to erect a firewall against the formal legal recognition of polygamy.  It can’t be done without rendering incoherent the “right to privacy” arguments of Lawrence, or raising uncomfortable questions about just what understanding of human nature lies at the root of the American idea that “all men are created equal.”

There’s much more to say about all of this, including the entirely rational reasons why traditional heterosexual marriage deserves a privileged status in our positive law, but I’ll leave that for another time.

Now back to the debt ceiling reality show.

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