On Legislating Marriage: The Basics (2004)

Legislating marriage is one of the hottest topics of these days. The content of the discussion, however, suggests a lack of understanding of what marriage is and what is possible and permissible for the government in legislating it. The basic principles have been understood and elaborated long ago. It might be that they were forgotten and need restated. Marriage had been fully understood and properly defined by the time the U.S. Constitution was written. I will cite the formulations of a contemporary of it [1]:

(1) “The law is the enunciation of natural relationships between the persons.”(2) “(H)uman marriage is a union with a commitment to form a society”;  “it differs essentially from concubinage, which is a union without a commitment to form a society, and still more from vague libertinism, which is a union with an intention not to form a society. The end of marriage is therefore not the happiness of spouses, if by happiness one understands an idyllic pleasure of the heart and senses, which the man who loves independence finds far more readily in unions without a commitment.” (3) “Religion and the State consider in marriage only the duties it imposes . . .   (P)olitical power only intervenes in the spouses’ contract of union because it represents the unborn child, which is the sole social object of marriage” (italics added) (4) “Marriage is a potential society, the family an actual society” (italics in original).

To expand on these principles, we note first that not all that is found in nature reflects a natural relationship. Next, there is no right, fundamental or otherwise, of citizens to marriage, as some commentators declare. The State is allowed to legislate for the child, because of a vested interest in its own continuation, that is, survival. Otherwise, it would have no reason or right to intervene as contract grantor, arbiter, or guardian in what is the most private of human relationships. Finally, the understanding of marriage as only a potential society accounts for the childless marriages, for which there is the potential of forming an actual society (procreating). Even if there is a proven medical inability of a spouse to procreate, the state has to grant the benefit of the doubt, because there is a possibility of procreation by a corrective action upon nature, as opposed to by changing the nature (the opposition between natural and unnatural relationship).

It follows that unions established for the purpose of satisfying sexual needs or desires cannot be included in a law on marriage. As an example, same sex unions are not natural relationships in the sense that justifies their enunciation as law, as their purpose is not conceiving children by natural means. In animal biology (the present comments are not concerned with transcendental arguments), the sex organs are a part of the reproductive system. In the animal regnum, females reject mating when they cannot conceive and the males have no interest in females not in heat. Sexual relations in manners incompatible with procreation are no more natural (biologically) than eating followed by self-induced vomiting practiced in the late history of Rome. (Certain sexual acts of partners of opposite sex, such as memorialized by a president of the United States and a blue dress, are equally unnatural.) Nor is marriage the formalization of a relationship of love (as argued by the Mayor of San Francisco, to defend his decision to break the state law, same-sex partners have the right to a loving relationship as much as he and his wife do [2]). Elementarily, marriage as a social contract has nothing to do with love. The sacramental marriage includes in some traditions a promise of reciprocal love, but is not even there nullified by one or both spouses ceasing to love each other. Cases of marriages where love is absent but the spouses do not separate for motives as diverse as consideration of the vital interest of children and reluctance of each to part with the Chippendale furniture, are well established. Anyway, the government has no business in regulating love. Otherwise, it would have been taxed long ago.

As an argument for defining alternative forms of marriage, the constitutional equal protection has been advanced. This is incorrect, because what is recognized in marriage is not the individual, but the relationship with the purpose (commitment) cited above. To offer analogies, equal protection does not allow me to request treatment in a VA hospital, if I have not served in the military. Likewise, corporations cannot be equally protected in terms of tax liabilities whether they are nonprofit or for profit. It is the purpose of activity (or relationship) which determines the recognition. Indiscriminately equal treatment is preposterous. And, of course, the treatment of either corporation is unconnected with the individual rights of persons involved in them.

Should we accept, however, marriage as a union for the purpose of satisfying sexual desire or sanctioning love between individuals, inclusion only of same-sex unions is inadmissibly narrow.  Justice Scalia [3] was expressing not legal principles but straightforward logic and common sense, when he observed that polygamy [4] (and polyandry) necessarily follow. (In fact, in terms of social utility, polygamy is easier to rationalize than same-sex marriage.) Bestiality deserves equal protection: an Illinois man arrested for sexual relations with mares [5] should be allowed to claim consensual relationships and thus be exonerated, if his actions involved adult mares. At the other extreme, consider two sisters living together. Their loving relationship has nothing to do with their sexuality. Why not define it as another form of marriage?

To solve the conflict between the absence of the premise for granting marriage status to same-sex unions and the compassionate feeling for those who clamor for such a status, some politicians and commentators  have proposed the introduction of civil unions as a new compact between two persons living together on a long-term basis for the purpose of sexual relations without the commitment (or ability) to form a society. The new status would, presumably, confer the social and economic advantages now reserved to married couples. This idea is conceptually deficient for three reasons. First, such unions would not have a social purpose, but would constitute the reply to some political considerations. Second, the protection and advantages given to married people, deriving from the vested interest of the society in its continuation by production and raising of children, represent a reward offered couples for making the commitment. The State (L’État) has already experimented with giving economic advantages and social recognition to mothers that bear children without the prior commitment of providing for them a society (family); the results have been most destructive. Giving economic advantages and social status to unions other than marriage, can only reduce the number of people willing to make the commitment of marriage. The effect on the production of future generations of responsible citizens is bound to be disastrous. The third and most worrisome deficiency stems from the essence of marriage: it is a sacramental union and a social contract. It could be argued that civil union represents the social contract part and, therefore, marriage – if distinct – has to be identified with the sacramental union. Before long, the usual plaintiffs would be in court asking for the abolition of marriage on the argument of separation of church and state, after which the civil union (called “civil marriage” in the communist system) might be the only union recognized by the laws of the land. /Completed in 2004/


References and Notes [1] Louis de Bonald, On Divorce (published in 1801), transl. by Nicholas Davidson; Transaction Publishers, New Brunswick, 1992,  esp. p. 51 and 62-66. [2] The Mayor of San Francisco, CA, on the Fox News TV channel, Feb. 14, 2004. [3] Antonin Scalia, Dissenting Opinion, Lawrence v. Texas, U.S. Supreme Court, June 26, 2003. [4] State v. Green, Case pending before the Utah Supreme Court [5] The Telegraph, Alton, IL, Aug. 07, 2003;  The Drudge Report, Aug. 10, 2003.