I want to say something right upfront: I absolve my brother of the responsibility of marrying my wife if I should happen to die before she does. I don’t think his wife would like him marrying her very much, and I know my wife doesn’t want to move to Arizona. I know what the Bible says on the subject, and I’m just saying, we’re not going to worry about it. He’s off the hook, as far as I’m concerned. My wife has a job in Utah, one she likes and is very good at. She’d just as soon stay put. So if I die first, bro, you don’t have to marry and care for your brother’s widow, the Bible notwithstanding. She’ll be fine.
Reading the oral arguments this last week in the case of Obergefell v Hodges, the gay marriage-defining case before the Supreme Court, one thing became clear; this is a case the Justices are taking very seriously. As Justice Scalia pointed out, “you’re asking us to decide it (same-sex marriage) when no other society until 2001 had it.” And Chief Justice Roberts made the same point, that theirs was a weighty responsibility. And it is. Marriage is the single most important social institution in all of human culture. I’m completely and entirely pro-marriage. Let’s get that out of the way too; this is not about being ‘for marriage’ or ‘against marriage.’
Several of the justices seemed to have done a lot of reading about marriage and its history. And they, quite correctly, pointed out that essentially all cultures had defined marriage as an institution between men and women; that no societies, prior to ours, had included, in their marriage customs, a relationship between two men, or between two women.
But then the venerable RBG, Ruth Bader Ginsburg, made this essential point in the entire argument:
But you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was a relationship between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the relationship of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t fit into what it was then.
Exactly. Marriage wasn’t so much between a man and a woman, as it was between a citizen and his property. It certainly wasn’t between a man and a “woman,” if we define “woman” as “autonomous equal,” or as “biologically different, but legally equalivalent.”
And “homosexual” didn’t mean the same thing then that it means today. In most societies, throughout most of history, “homosexual” meant “deviant.” It was defined by words like “pervert,” “criminal,” “outcast.” It meant “subhuman.” Gay men had rights, but not as a gay person; they had rights only to the extent that they remained in the closet. Gay people have historically been persecuted, tortured, abused, rejected, reviled. Executed. The idea of codifying gay marriage or same sex marriage was completely unthinkable, most places, most times. That remains true in much of the world today. In much of the world, gay people live, quite literally, under a perpetual sentence of death. But in Western society, things have changed, and you’d have to be some kind of monster not to see those changes as wonderfully positive.
So when people talk about ‘traditional marriage,’ or ‘biblical marriage,’ they’re talking about an institution that absolutely nobody in modern Western society would want to reinstate. I don’t want to live in a world where women can’t own property, or vote, or manage their own affairs. I have no interest in living in a marriage that’s not defined in terms of equality. And when I work with gay colleagues, I don’t think of them as ‘gay colleagues.’ I think of them as co-workers, as friends, as designers or stage managers or actors. And I wouldn’t want it any other way, nor would anyone else. Redefining ‘gay’ has been a wonderful thing for society, just redefining marriage in more egalitarian ways has been a wonderful thing for society. Feminism rules. Equality rocks.
Besides, when we talk about ‘defining marriage,’ we’re talking about something that married couples do all the time, individually. We divide up chores, we figure out how we’re going to resolve differences, we work out a schedule, we talk and joke and sing and, at times, quarrel. ‘Defining marriage’ is a constant work in progress, full of compromises and long conversations and routines and traditions.
And, of course, some marriages are horrible. Some marriages are ‘defined’ by infidelity, or violence, or selfishness, or viciousness. Or passive-aggressive resentment. And some marriages don’t work at all, and end. And should end. And I suppose divorce is a bad thing–it’s often condemned from the pulpit, certainly. But I have known many people who have gotten divorced, and based on what I knew about those marriages, I can’t think of a single time when I didn’t think the divorce was a good thing, and completely justified. If being together makes one or both spouses completely miserably unhappy, ending it may be a kindness. I would point out as well that in most homicides, the cops look at the spouse first.
Will gay marriage change any of that? No, of course not. Gay couples quarrel, gay couples cheat, gay people are human beings, with the same propensity for bad behavior of any other people. And so what? They’re asking for equality.
John Bursch, attorney for the respondents, made what I thought was the single silliest argument in the whole court session. If gay people are allowed to marry, he said, then it will provide a disincentive for straight men, who have fathered a child, to marry the child’s mother, because a gay couple might be willing to adopt that child. First of all, there are plenty of unwanted children in need of stable, welcoming homes. And besides, people don’t make decisions as important as marriage based on Supreme Court decisions. People decide to marry, mostly, because they’re in love.
Of course, court-watchers love to parse the oral arguments of any case to see which way the Justices might be leaning. I think, though, that it’s going to go 5-4, and could easily be 6-3, if Roberts decides he wants to write for the majority. It’s been a long battle, but it’s close to over. And marriage, as an institution, will survive just fine.