So those irresponsible senators refused, once again, to protect marriage. President Bush pushed for the Marriage Protection Amendment which, building on the Defense of Marriage Act of 1996, would offer a constitutional amendment prohibiting the recognition of same-sex marriages. It failed in the Senate, as expected, but is supposed to undergird similar ballot initiatives in a number of states next November.
My questions: what’s to protect, and where’s the threat? Bush used the standard rhetoric about marriage as “the most enduring and important human institution, honored and encouraged in all cultures and by every religious faith.” That’s true enough, though the modalities of those marriages honored in different cultures and religions might not all be so pretty if closely examined. But what do we know about what marriage is, and what it is for?
I have just finished co-teaching a seminar called “Marriage in Law, Culture, and the Imagination,” (along with Kerry Abrams of Virginia Law School, an expert in family law). At semester’s end, I can say we looked at a range of material on marriage, from anthropologist Claude Lévi-Strauss to feminist theoreticians Gayle Rubin and Adrienne Rich, from Molière’s School for Wives to Mozart’s Marriage of Figaro, and delved into court cases concerning polygamy, paternity, contraception and same-sex marriage, as well as historians of marriage and the family—to emerge with more questions than answers. Lévi-Strauss argues convincingly that marriage is about the creation of kinship systems—structures of relationship and obligation among family groups: the original support network. He claims also that marriage has nothing to do with sex, which is regulated in a wide variety of ways by different cultures. Whereas for Judge Richard Posner, marriage is all about the regulation of sexuality, largely male sexuality—keeping the guys in line, which instinctively seems right. But then, why would permitting or encouraging guys to marry one another be a threat to marriage? One might see it as the opposite, trying to normalize and regularize a subversive gay culture (as Michael Warner, among others, has argued). “Changing the definition of marriage would undermine the family,” Bush claimed. Mightn’t the opposite be true?
One of the dissenters in the Massachusetts same-sex marriage case, Goodridge v. Department of Health, Justice Robert J. Cordy, reached back to the 1810 opinion in Milford v. Worcester, which claims that the purpose of marriage is “to regulate, chasten, and refine, the intercourse between the sexes; and to multiply, preserve, and improve the species.” We may have become skeptics about improving the species, but that verb “chasten” still packs something of a punch. (See Wordsworth on “The still, sad music of humanity,/Nor harsh nor grating, though of ample power/To chasten and subdue.”) Many would concur that marriage, whatever else it may be, is a chastening experience.
That there is a tremendous social investment in marriage can’t be disputed; and that the law then piggybacks on this to create a network of benefits and regulations that go with marriage can’t either—note all legalities that come into play when you go to dissolve a marriage, for instance. If Lévi-Strauss is correct, the law of all laws is the incest taboo—the very foundation of society since it forces the males of the clan to offer their daughters up to marriage out of the family, rather than grabbing them for themselves. The incest taboo also underlies what Gayle Rubin calls the traffic in women: it tends to be the men who put the women on offer, make the deals, enforce the couplings. In fact, the rhetoric of choice that one sees in many of the contemporary American debates on marriage—including the landmark opinion in Goodridge v. Department of Health—seems to have little relevance to the traditions of marriage. Traditional marriage had much more to do with what patriarchs chose for you.
“In a free society, people have the right to choose how they live their lives,” Bush stated in last Saturday’s radio address on the Marriage Protection Amendment. He then used this statement to say that only the people’s elected legislative representatives have the right to redefine marriage. But the statement is curiously self-deconstructing: if we really live in a society in which freedom is defined by our right to choose what we believe we need for our well-being, then how can you restrict marriage? The very restrictive history of marriage becomes a problem, not a solution.
The real solution to our muddle would of course be simply to abolish marriage: to create a general statute on civil unions, for same or opposite sex unions, then to allow couples who so choose to add a religious consecration of their marriage if they so chose. This would go some way to disentangling church and state on the marriage issue. That in itself would seem desirable, and in line with the practice of many European countries, which require a civil marriage and permit, optionally, a religious one as well. And it might help improve the rhetoric on the issue if we could sort out the legal and material benefits and responsibilities of the married state from its more mystical properties.
I know of course that such a proposal is utopian. It is precisely because we don’t really know what marriage is that we rush to “protect” it. The protective gesture suggests an anxiety that maybe the notion is empty, that marriage is a ring with a kind of hollow core. To be sure, couples over the centuries have filled in that hollow for better or for worse with all sorts of good as well as a number of bad things. The question may be what’s to be gained from opening up the question of marriage, and asking if it shouldn’t be subjected to a more rational scrutiny. My answer: in the long run, there might be much to gain from asking if marriage is the right arrangement for our current human and social needs. In the short run, however—in an election year—there’s nothing to gain and too much to lose. Let them eat their Marriage Protection Amendment.