I’m currently up to my neck reviewing for the Bar exam. So I decided to post a legal paper I wrote for class last year. I edited and formatted it for this blog. I also took out a good chunk of the more technical discussions of constitutional law and rewrote certain sections to make more sense for those who don’t speak legalese. Enjoy. I’ll be around for discussion and comments. I’m also ready for the inevitable charges of homophobia and bigotry; wouldn’t miss it for the world.
If defining marriage as a “public commitment of emotional support” doesn’t work, then what can we do? Well, that depends. It depends on what your view of marriage is. There are generally two answers. First, there’s the view that marriage is something that exists no matter what the government says; marriage preexists the state. The other view is that marriage is merely a social construct that is really up to us to define however we want.
Given these two views, marriage cannot be viewed as a mere social construct. If it were just a social construct, then there would be no “wrong” definitions; we could define marriage however we want. There would be nothing wrong with defining marriage as a relationship between 1 man and 1 woman. In order for this to be wrong, there would have to be a “right” definition of marriage. However, there can only be a right definition of marriage is something that exists independently of what we say or think and our definition matches this preexisting relationship we call marriage.
However, now we are back to answering a fundamental question; what is marriage? As I wrote before, marriage cannot be a “public commitment of emotional support” because we exclude many relationships that fulfill that criteria. If that’s your view of marriage, then you would need to be consistent and allow any relationship that fits that definition to get married. An alternative view is presented in an essay published by the Harvard Journal of Law and Public Policy. The essay, “What is Marriage” presents us with this view of marriage:
Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children con‐ tributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it
Let’s take this piece by piece. First marriage is a kind of relationship where a man and woman make a permanent and exclusive commitment to each other. Second, this relationship is the kind that is inherently fulfilled through procreation (both bearing and raising children together). Third, though marriage is valuable in of itself, the fact that it is naturally geared toward procreation makes it distinct from other types of relationships (friendships, soccer teams, etc). These are the essential attributes of a marital relationship. When a relationship has these attributes, then it can be considered a marriage.
I know, I know. There is one objection that I get all the time. What about couples that can’t have or don’t want to have kids? Are you saying these couples can’t get married or don’t have real marriages? Not at all. Remember, it’s not the act of having kids that makes a marriage but a union with the natural tendency or potentiality of having kids that makes a marriage.
Let me explain with an example. A camera is a certain kind of device; it has a viewing window, lens, shutter, film, etc. Furthermore, a camera is geared toward taking pictures. All these characteristics define a camera. However, suppose someone manufactured a camera with all the necessary parts and was perfectly capable of taking pictures; however, the owner never took a single picture with it. In fact, the camera is eventually destroyed in a garbage dump without ever producing a picture. Does that mean the camera wasn’t really a camera? Or suppose you have a camera that was manufactured and then broke. That camera cannot take pictures, however, just because it cannot take pictures doesn’t mean it stops being a camera. It’s still a camera, albeit a broken one. And no, I’m not implying that infertile or childless couples are “broken”. I’m using the illustration above to illustrate a certain point. So don’t bring it up.
In the same manner, infertile couples or childless couples don’t stop being married simply because of a lack of children. It is a union with that tendency or nature leading to the bearing and raising of children that makes a marriage. Therefore, if this is what marriage is, then same-sex couples cannot marry because they wouldn’t have all the attributes of marriage. Nothing we said or did would matter because marriage is something that exists regardless of what we do.
Well, how does this definition prevent incest and polygamy. As I said before, marriage has a tendency towards the bearing AND raising of children. Relationships like incest risk producing children with mental and physical problems; polygamy has a whole host of problems . The state would be justified in banning polygamy and incest because of the alleged state interest in protecting children. Of course, then the objection becomes then why don’t we screen potential couples to see if they will be good parents before giving them a marriage license? Well aside from privacy and other constitutional issues, such a law reeks of totalitarianism.
Another proposed solution is to simply privatize marriage; let the people themselves decide what configuration they want to live with. However, this solution will only increase the power of the state and create more problems than it attempts to solve. Here’s an example:
Imagine, for example… that marriage becomes exclusively the domain of “the church.” Suppose Bob and Mary, both devout Catholics, marry in the Church under the authority of canon law. Over the next decade, they have three children. Mary decides to leave the Church, however, to become a Unitarian and seeks to dissolve the marriage. Because the Church maintains that marriage is indissoluble, and Mary has no grounds for an annulment, the Church refuses her request.
Mary then seeks the counsel of her pastor at the Unitarian Church. She tells Mary that the Unitarian Church recognizes her marriage with Bob, but maintains that divorcing him is perfectly justified, since the Unitarian Church holds that incompatibility is a legitimate ground for divorce. So, Mary now requests a divorce from the Unitarian Church, and it is granted. The Church also grants her full custody of her children, since, according to Unitarian moral theology, what Bob teaches their children about contraception, abortion, and same-sex relations are “hate sins,” and thus is a form of child abuse.
So, who wins in this case? Suppose you say that because it was originally a Catholic marriage, it should remain so, even if Mary changes her religion. But who has the authority to enforce such a rule? The Catholic Church? The Unitarians? What if the Catholic Church agrees to it, but not the Unitarians?
Suppose Mary, on the authority of the Unitarian ruling, simply takes the children and moves out of state. Is that kidnapping? Can a Catholic ecclesial court issue an order to a local Knights of Columbus office to return Mary and her children to their original domicile so that she can be tried in an ecclesial court for violations of canon law? And if she is convicted, can the Church put her in an ecclesial prison or fine her?
Suppose that Mary not only leaves with all the children, but also empties the couple’s bank accounts and donates their contents to the Unitarian Church? Is it a crime? Who decides? Imagine that all these issues were addressed in private contracts that Bob and Mary drew up and signed upon the commencement of their marriage in the Catholic Church. Who has the power to make sure these breaches are remedied and compensation given to the wronged parties?
The only way to resolve these disputes is for the state to intervene. What to do with children, property, state residency, freedom of movement, etc. when marital relationships break down are public issues. They are not private ones. Consequently, in such a privatization of marriage scenario, the state would actually become more intrusive into ecclesial matters than it is at present.
Privatizing marriage won’t work and will likely cause more state intrusion that it purports to solve.
 See, Elizabeth Larcano, “A ‘Pink’ Herring: The Prospect of Polygamy Following the Legalization of Same-Sex Marriage”, 38 Conn. L. Rev. 1065, 1104 (2006) or Hema Chatlani, “In Defense of Marriage: Why Same-Sex Marriage Will Not Lead Us Down a Slippery Slope” 6 Appalachian J.L. 101, 108 (2006) for an overview of problems with polygamy and incest