Archives: February 2011

Eric Holder, the Attorney General of the US, yesterday released a letter declining to defend the constitutionality of DOMA, the Defense of Marriage Act, in court.

Well, sort of.

DOMA has two parts: One part, which presumably the Obama administration will continue defending, says states don’t have to recognize same-sex marriages performed in other states. The other part — called “Section 3″ — says the Federal government won’t recognize same-sex marriages performed in states where same-sex marriage is legal. (This has practical effects in a bunch of areas: social security benefits, federal taxes, immigration, etc…)

Holder’s letter says the Obama administration will no longer defend the constitutionality of Section 3 of DOMA in court, although they will continue enforcing the law.

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In “What is Marriage?,” Girgis, George & Anderson (for convenience, I will refer to them as “George,” after their most senior member) argue that there is something called “true marriage” that exists apart from culture. But the truth is, huge numbers — probably the majority — of human cultures would not have agreed with George’s definition of “true marriage.” Many or most cultures have recognized polygyny or polyandry, for example. More recently, an increasing number of cultures recognize same-sex marriage. It’s extremely counter-intuitive to say that there is an objective, universally true definition of marriage which many or most human cultures have gotten wrong.

George writes:

Marriage’s independent reality is only confirmed by the fact that the known cultures of every time and place have seen fit to regulate the relationships of actual or would‐be parents to each other and to any children that they might have.

It seems dubious to claim “the known cultures of every time and place” to argue that marriage has an “independent reality,” while simultaneously defining “real marriage” in a way that contradicts how marriage was defined in many or most of those known cultures.

In my view, marriage is the institution by which people who aren’t each other’s immediate kin, become each other’s immediate kin. (This has the useful secondary effect of making two families, who may not have had previous connections, into kin.) Unlike George’s definition, my definition is accurate for the overwhelming majority of known human cultures, including — as far as I know — all present-day human cultures.

But although there is a core definition of marriage, shared by virtually all human cultures, there are also details which vary between cultures. So if I were defining marriage in the present-day US, I’d say it’s the institution by which two unmarried, consenting adults who are not close kin, become legally and socially recognized as each other’s immediate kin.

George argues that “revisionists” are unable to explain why incestuous marriages shouldn’t be legally recognized:

Many revisionists point out that there are important differences between these cases and same sex unions. Incest, for example, can produce children with health problems and may involve child abuse. But then, assuming for the moment that the state’s interest in avoiding such bad outcomes trumps what revisionists tend to describe as a fundamental right, why not allow incestuous marriages between adult infertile or same sex couples?

In my case, I’d first say that marriage is a kin-making institution, which by definition transforms two unrelated (or at least not closely related) people into close kin. It makes no more sense for marriage to turn close kin into close kin than it does for an alchemist to transform gold into gold. It’s already gold.

Second, I’d point out that limiting incestuous marriage to adults would not solve the problem of child abuse, and could conceivably make it worse. Legal recognition of incestuous marriage could give sexually abusive fathers (or mothers — but in most cases, sexually abusive parents are fathers) a strong incentive to sexually abuse their daughters, in hopes of crushing her will before she comes of age, so she’ll agree to marriage.

Finally, I’d argue that child health and child abuse are not the only harms of incest. Importantly, legalizing incestuous marriage between the infertile would transform currently existing families, by introducing the possibility of marriage into relationships that have never had that possibility. It fundamentally changes the relationship between father and son, or between sister and brother, if we add the possibility of marital union to those relationships.

A question often asked of SSM opponents — one they’ve never persuasively answered — is “how would your family be harmed if two women you don’t even know get married?” A traditional nuclear family in Massachusetts was no different after the Goodridge decision than before. But legalizing incestuous marriage would introduce new, intrusive and unwelcome possibilities into existing families, by making siblings, and even parents and children, evaluate each other not only as family members but also as potential mates and spouses.

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Since there’s no evidence that same-sex marriage is harmful, SSM opponents commonly resort to a second-degree harm argument: We must not recognize SSM, because denying legal recognition to SSM is crucial for preventing incestuous marriage. (Or bestiality, or men marrying androids, and so on and so forth.) Although it’s unclear if George makes this precise argument, it’s a common argument among SSM opponents, and therefore worth addressing.

The implication of this argument is that legal recognition of SSM would necessarily (or at least plausibly) lead to the legal recognition of incestuous marriage.

But that’s not how change actually happens. Incestuous marriage will never be legally recognized in the US until millions of Americans become persuaded that it should be legally recognized. And there is no sign of that happening, because of SSM or for any other reason.

SSM opponents (particularly those less sophisticated than George) might respond that if the courts can recognize a right to SSM, then they could also force incestuous marriage down American’s collective throats, regardless of how disgusted Americans are by the prospect. But again, this argument shows a fundamental misunderstanding of how change happens. Judges do not create social change out of thin air; it is only in an atmosphere of commonplace (although not universal) acceptance of homosexuality that a court ruling had any practical power to bring about recognition of SSM.

In other words, legal incestuous marriage cannot happen until millions of Americans are persuaded to support it. The incestuous marriage objection to SSM therefore only makes sense if we assume that there are no persuasive arguments against incestuous marriage apart from banning SSM. But as we’ve already seen, that’s not the case.

But what if, as SSM opponents may believe, there are no persuasive arguments against incestuous marriage? Well, if there are no arguments against it, then why do we need to oppose incestuous marriage at all? More importantly, if there’s not a single persuasive argument against incestuous marriage, why believe that banning SSM will prevent incestuous marriage from ultimately being recognized?

Finally, consider the crucial issue of fairness. The argument that we must ban equal marriage for same-sex couples in order to prevent incestuous marriage treats LGBT people and their families instrumentally; it dehumanizes them by treating their lives and needs as if they are of no consequence, mere tools to be used (and if necessary destroyed) to prevent a bad policy outcome.

How have same-sex coupled earned being punished for the sins of incestuous couples? Not in any way. What justifies singling out same-sex couples for this treatment? Nothing I’ve seen. Singling out same-sex couples for second class status in this way is unjust.

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Related to this post, I’d encourage everyone to read the discussion of how George’s use of the word “discrimination” is slippery on the blog Waking Up Now.

In a novel I read recently and already cited from below, there was another phrase that keeps coming back to me. The writer refers, almost in passing, to the “simple somersault by which a young girl becomes a wife and mother…”

I can’t get it out of my head, I think because although the novel was written fairly recently, in France, it seems to evoke the assumptions of an earlier era. Yes, for most, to become a mother is pretty simple (and perhaps, for some, even involves some gymnastics). But for so many young people the institutional framework that propelled them into marriage has weakened considerably or all but disappeared. For these young women, motherhood may well happen sooner or later, but marriage is elusive.

It is hard, now, to wake up and find yourself married. In some ways that is probably a good thing. But it also means that fewer and fewer people are doing it. They are left, circling in midair, contending with the emotional landscape of human relationships in a setting drained of the structures and meanings that help the rest of us muddle through and even, at times, achieve happiness.

[NOTE from Editor: This post is somewhat explicit.]

Girgis, Anderson and George’s rebuttal to my earlier post (for convenience, I’ll call them “George,” after the most senior member of their team) was helpful to me, and clarified some of their arguments, for which I’m thankful. Nonetheless, it is no more persuasive than their original article.

I will attempt to explain my objection to their position again, drawing from from my now-improved understanding of their argument.

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