What's the "Chief Purpose" of Marriage?

Last week, I laid out some of my ideas about what is and is not radical about same-sex marriage, boiling down a few of the chief concepts I've argued in public over the past 15 or so years. Maggie Gallagher, chief nemesis of the marriage-equality movement, referred to one of those three posts at The Corner, National Review's group blog. In response, I noted that we agree, in small part, that allowing same-sex pairs to marry continues to nudge the meaning of the institution in the direction of separating sex and diapers. Maggie responded, paraphrasing me incorrectly (which, all right, isn't misquoting exactly, but which still puts words in my mouth that I would never say, imply, or think) this way:

E. J. says we agree that gay marriage in some nontrivial way disconnects marriage, sex, and diapers. It reduces the connection between marriage and its erstwhile chief public purpose: regulating responsible procreation.

No, Maggie, that's not what I said. I said that same-sex couples are following, not leading, the variety of changes in marriage's public meaning that were made by capitalism between 1850 and 1970—the time span between Anthony Comstock's anti-obscenity crusade and the paired Supreme Court decisions of Griswold and Eisenstadt. In addition, I would not agree that the most important of these changes in marriage law and public philosophy is snipping the link between sex and babies; that's just one of them. Some of the other changes include formal gender equality, which was won by the mid-1970s; and divorce with remarriage, which implies that marriage is for love rather than being a lifetime sex-and-labor contract, and therefore unbreakable. You believe that adding same-sex couples to marriage is what really snips the link between sex and babies. I don't. 

A look at the history of anti-sodomy crusades—first religious, then legal—shows that the Catholic Church considered any sex that had no hope of leading to reproduction as a horrible "crime against nature." Whether that was drinking pennyroyal tea to prevent conception or induce miscarriage; sex con bouche or con mano; sheepskin barriers; coitus interruptus; or using the back door, all were banned for the same reason: Because only sex that led to babies was legitimate. Even intercourse outside marriage wasn't as bad as marital intercourse with barriers, especially if a pregnant couple later married. As late as the early 20th century, the Catholic Church was opposed even to the rhythm method, which had been promoted by one of its priests, as a horrible crime against nature. (My source is John T. Noonan, Jr.'s exhaustive history, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists.)

Much of that distaste was imported into Protestant theology, and, later, Western law—and defeated during the first half of the 20th century by Margaret Sanger and her Planned Parenthood movement, which worked to save women's lives by allowing them to prevent pregnancy. As you know, in Griswold v. Connecticut, the Supreme Court struck down the country's last remaining Comstock law banning the use or sale of contraceptives. That decision codified in American law the separation within marriage of sex and babies. Soon after, the Supreme Court endorsed the then-prevailing view that sex outside marriage was none of the government's business, either, in Eisenstadt v. Baird: It declared that states could not intrude into unmarried people's intimate lives by banning distribution of contraception except to those with wedding rings. That's why, when you and others argue that same-sex couples don't belong in marriage because the institution is for procreation, everyone rolls their eyes and asks whether couples who don't have kids will be kicked out: Because our shared social agreement on marriage's public purposes has already changed. Society no longer enforces the view that sex should lead to babies, and that babies belong only within marriage. Because that shift already happened, same-sex couples now belong—and will, indeed, nudge that symbolism just a little bit further.

But Maggie, I would never, ever suggest that marriage's "chief public purpose" had ever been "regulating responsible procreation." That's your preoccupation, and we disagree profoundly about its centrality. I know you've read my book, What Is Marriage For?; you've referred to it in our exchanges in the past. When I researched marriage's history, I came up with six different axes along which marriage rules and regulations had been laid down: Money (always first!), sex, babies, kin, order, and heart. There have always been rules and regulations about these purposes, but they've shifted dramatically over the millennia, always after hard-fought battles. To oversimplify, the chief purpose of marriage used to be allocating your life's primary work or property partner. Sex, that unruly force, was confined within partly because it usually led to babies, who were best cared for as part of, and would contribute to, that household labor effort. I won't go into all the other items here—I could write a book!—but through the 18th and 20th centuries, some other battles over marriage's chief public purposes included whether teenagers and young adults (under, say, 35) could marry without parental or kin permission; whether married women could control their property or have custody of children, free of male control; and whether spouses could divorce for no better reason than lack of love and marry again despite having a first spouse still living, or whether that was polygamy.

My primary point is that same-sex couples seem to fit marriage today because all the changes that make it seem appropriate were already complete. Once upon a time, you needed kin and spouse and community all on your side if you were to make a living. That changed with Adam Smith's invisible hand. And once you can make your own living, you can also make your own bed. Marriage for love; sex for intimacy and not necessarily for babies; gender equality—all that (and more) adds up to me and my gal.

So yes, same-sex marriage confirms that shift in symbolism, further snipping the link between sex and diapers, among others. But I am married today as the consequence, not the cause, of changes that have already happened. Lesbians and gay men are just not important enough a fraction of the population to embed that shift into American consciousness much more than it already is. Only restricting contraception—as the Republicans have been discussing lately—and restigmatizing bastardy (if you'll pardon my language) would do that. Yes, of course, contraception fails. I know you want to link men to their offspring, even then. But the free and legal availability of contraception is what stands as the central symbol that sex and diapers needn't be linked. That's where most young people first and most powerfully encounter the state's opinion about the proper uses of sexuality—considering the use of condoms, available in every drugstore—not when they see Jenny and Mary down the street get married. 

Maggie, I apologize if my offer to let you blog here was insulting. I didn't intend that. Of course you have your own corner. As to your question of whether the possibility of same-sex marriage affects 1.5 percent of the population: No, I don't think that's an overestimate. Even those young lesbians and gay men who will never marry are affected by knowing that they are part of the social contract and would be profoundly respected no matter whom they love. So I should've said 3 percent of the population, since that option also affects everyone who is bisexual.

So here's another offer: Want to join me on Bloggingheads.tv? I'm hosting an episode of Sarah Posner's show for her the week of July 16. Are you free that Monday for an online chat? I e-mailed you this invitation, but I haven't heard back. What say ye? Can we talk this through out loud?

Comments

Marriage comes under the individual's infallible right to Bodily Sovereignty. Stated another way: The Individual Human Being as PRIME in the Universe. Neither the STATE nor the CHURCH holds any power over him or her.

The amount of verbosity and prolixity to answer an obviously clear question is simply amazing.

EJ, in your research, did you ever encounter a marriage where the couple was prohibited from conceiving children together, as in, creating biological offspring by combining their genes?

The Chief Purpose has always been to officially approve and allow the couple to make babies together. There has been a change recently where people don't need marriage to do that, and of course not every marriage does that, but every marriage is always approved to conceive offspring, even elderly people, and even those first cousins that only are allowed to marry if they are infertile (they are not arrested if they do or told they may not have sex or conceive offspring, once married they are allowed just like any marriage).

First, do you agree that every marriage has been allowed and approved to conceive offspring of the marriage?

Next, do you think that it should continue to protect and affirm that right?

And the question as it relates to same-sex couples: should people be approved and allowed to conceive offspring with someone of their same sex?

John, I believe I laid out my answers, but again:

 

"First, do you agree that every marriage has been allowed and approved to conceive offspring of the marriage?" I am not sure what you mean. Yes, marriage has always been a way to make the point that this couple's children would be "legitimate." But I do not believe that that is the only primary public purpose of marriage, although it often coincided with the others. 

"Next, do you think that it should continue to protect and affirm that right?" Of course people who want to have children within a marriage should continue to be free to do so. Have I suggested otherwise, anywhere?

"And the question as it relates to same-sex couples: should people be approved and allowed to conceive offspring with someone of their same sex?" There is no technology anywhere that suggests that that is now or soon will be possible. I absolutely think that IVF and other assistive reproductive technologies are wonderful for those who can and do use them. I do believe that people of the same sex who rear children together, however conceived, would be greatly helped by being able to rely on marriage's protections--and that it does and will help those children when their parents can marry. 

1) I meant, in all your research, you never came across a marriage that was prohibited from having sex or children together, right? Every marriage has meant social approval of sex and conceiving offspring with each other's genes, right?

2) I'm not sure what you have suggested, I just started reading your stuff. I have seen calls for issuing separate licenses for the conception of children, and saying that marriage should not automatically be a green light to conceive offspring with each others genes. Here is a recent one from a Transhumanist website: http://ieet.org/index.php/IEET/more/tittle20120617 So I wanted to know if you agreed with them or with me that marriage should continue to approve and allow the birth of offspring, and I'm glad you agree that it should.

3) It could be possible in a few years. Did you know that labs have made gametes from stem cells and people are speculating about the prospect of same-sex conception? I'm not asking about the science, you are a lawyer, aren't you? The science doesn't matter, we are discussing abstract rights: Is there an abstract right to procreate with someone of the same sex? Apparently you think that same-sex couples should be allowed and approved to use stem cell derived gametes to procreate offspring together, but I think that is a radically unethical and unwise endeavor and it should instead be prohibited, like incest is prohibited. It would become a huge expensive entitlement program, and harm human dignity and equality.

The security you seek for same-sex families can be achieved with Civil Unions defined as "marriage minus conception rights" which could be given federal recognition as marriages and enacted in most every state immediately. If you just gave up the insane demand for equal procreation rights - something that can't even be done and will probably never be possible even with billions of dollars and years of research - and agreed that people should only be allowed and approved to procreate offspring with someone of the other sex, then we could resolve the debate in a way that helps actual families. Please reconsider your priorities and help those families instead of clinging to an abstract right that is unnecessary and divisive and crazy.

"Even those young lesbians and gay men who will never marry are affected by knowing that they are part of the social contract and would be profoundly respected no matter whom they love."

Does "profoundly respected" mean "approved in principle to conceive children, and allowed if it is ever practical or safe to make a baby by joining with that person's genes, no matter what sex they are?" What should we be telling young people right now about whether they will have to join with someone of the other sex to reproduce offspring in the future? I think a lot of people believe it will be possible to be "postgendered" and reproduce as or with either sex, which I think is cruel to speculate about, because it should not be approved in principle. There is no abstract right to reproduce as or with either sex, only with the other sex, and so we don't need to speculate about how it might be done and if it is possible, we know right now that it will be unethical and unnecessary and not be worth it to 99.999 percent of the population. I'd say 100% but there are some people heavily invested in it.

(Oops. I guess I couldn't wait for your response to my first questions, I had more to say while i waited. Have you encountered people like me who say that it is unethical and bad public policy to create people by any other method than we do right now, combining a man and a woman's natural egg and sperm?)

Whatever the meaning of marriage is, it is a deeply private matter and nobody's marriage should be judged inferior to anybody else's.

Some people are simply natural-born bullies who simply MUST have their way.

True, nobody's marriage should be judged inferior to any other, all marriages are equal and have an equal right to procreate offspring, however, certain relationship types are not suitable to marry and procreate, such as brother and sister, mother and son, etc. Those relationships should be judged unethical and immoral and be prohibited.

Obviously, I mean those marriages should be judged unethical and immoral and prohibited. There is nothing immoral about being siblings, but we don't let them marry and procreate with each other. Likewise, there is nothing immoral about being the same sex as someone else, but we should not let them marry and procreate with each other.

Obviously, I mean those marriages should be judged unethical and immoral and prohibited. There is nothing immoral about being siblings, but we don't let them marry and procreate with each other. Likewise, there is nothing immoral about being the same sex as someone else, but we should not let them marry and procreate with each other.

What is it with you and the reproduction??

Where does it say on any marriage certificate or license, Pending production of offsrping?

Grow up.

The chief purpose of marriage is SECURITY--financial and social, in a world where otherwise we're continually hustling to please, and where unpleasing people are throw-aways. To point of marriage is to LOCK IN a relationship, in order to guarantee financial security, companionship (or at least the presence of another warm body) and, if and when necessary, care.

So it doesn't matter whether it's opposite sex or single sex, whether children are involved or not, or for that matter whether sex is involved or not. The point is that it's a lock in contract. From this point of view same sex marriage of course isn't an issue--divorce is. We want to rig marriage, whether between same sex partners or opposite sex partners or--I'd go for this--more than two people, in such a way that it's unbreakable. No divorce. Your locked in. That's the whole point of the institution.

It's pretty bold of you to state the "chief purpose of marriage" and the "point of marriage" as if those aren't just your opinions, but some universal truth.

Everyone thinks they know what marriage is, but try and define it - not necessarily as you think it should be or what your religion says, but as it actually is recognized in our society. When you do so, I think you'll find that marriage, as it actually is across all of society, is an extremely vague conceptual mishmash. Marriage means different things to different people. The only thing that I can see about marriage that is common across all of them is this: They are a public declaration of a union between individuals.

That's it: It's public, because we take out a licence and have the fact recorded by the government, but it can also be public in the sense of the ceremony taking place before members of the community. Why? So that all know that the participants in the marriage have chosen to be married, and now are. Why did they choose that? You have to ask them.

What can't we say is a part of the general definition of marriage?
Love - there are arranged marriages, and certainly lots of loveless marriages, so that's not a defining feature.
Religion - Atheists and Religious believers alike have the ability to become married, so that's not it.
Procreation - A man is not prevented from marrying an infertile woman, nor is it against the law to have children outside of marriage.
Financial Security - Really? Is there a credit check required before marriage? No, we don't say to two spendthrifts that they can't marry.
etc.

What the purpose of marriage is, is up to the people in the marriage.

What was my purpose in getting married? First, it was a statement to my wife that I loved her and wanted to be with her for the rest of my life. Second, it was a statement to our families and friends of that same sentiment. Third, it was because it was what I believed I was supposed to do. If you ask my wife what her purpose was, she might say something different, but our purposes would likely mostly overlap.

I didn't get married to lock in a companion for when I'm old. I didn't marry to ensure my financial security. I didn't get married to make sure I would have someone to care for me when I'm older. If there are marriages that are based on that purpose, that's fine.

Really for me, it was just me communicating that I had a love for this person that I didn't think was fleeting. It was an old-timey romantic statement of promising to love someone forever. That's it.

I don't agree that marriages should be irrevocable - people make mistakes. If they do make mistakes, let them fix them.

But maybe when you speak of the purpose of marriage, you don't mean the purpose of the participants, you mean from the point of view of society, like society is making sure I've got a support system of one.

Maybe historically that's true, but I doubt it. I think that marriage now, legally, is simply a reflection of what people's expectations are. Undoubtedly, much of those expectations come from tradition, but public expectations do change over time, and that has been reflected in the legal treatment of marriage.

For me, the only ingredient that I think a marriage requires is some type of reciprocated romantic love. That's it. That's just my own definition of marriage though. Certainly, legally that's not required.

What I'm getting at here is that marriage is already a huge, extremely vaguely defined tent. When we have no idea what this tent is made of or even why we have it, how can we say so definitively that there is not room in it for people who love each other because they happen to be the same gender? How is that not completely arbitrary? That's like trying to outlaw one particular religion (or atheism), just because it doesn't agree with your own personal world view.

You make it seem like people marry one person, but have babies with someone else, and that's just not the expectation. Sure now we seem to allow sperm and egg donation and hiring a surrogates, so apparently it's now OK to have babies with someone other than your spouse, but I think that won't last to long, because it isn't ethical to make babies with purposefully broken families. And even if its allowed to have children outside of marriage, the key thing is that marriage should always approve and allow and protect the couple having babies together, natural genetic offspring together.

The key thing that a marriage requires is to consent to have sex and babies with each other, to want to make genetic offspring with each other and not with anyone else, to not have sex or offspring with anyone else.

I don't understand the point of marriage if you're not interested in security, in getting into a relationship you don't have to "work on," where you don't have to to please, to keep looking good etc. If you aren't interested in lock in, what's the point? You fuck anyone you want. Who cares. As for "love"--give me a break.

Of course guys see it differently, because they can take care of themselves financially--and because any man who had money can get a woman. Women after a certain age can't give it away. We need to lock into those relationships while we're still fresh. That's why we need that lock in.

I don't understand the point of marriage if you're not interested in security, in getting into a relationship you don't have to "work on," where you don't have to to please, to keep looking good etc. If you aren't interested in lock in, what's the point? You fuck anyone you want. Who cares. As for "love"--give me a break.

Of course guys see it differently, because they can take care of themselves financially--and because any man who had money can get a woman. Women after a certain age can't give it away. We need to lock into those relationships while we're still fresh. That's why we need that lock in.

And that's your view - that's fine. It suits your individual situation. But why do you want to impose your view onto everyone else?

As for the ability to "fuck anyone you want", that's true. It's not illegal to have sex outside of marriage. But if you in your own marriage want to be faithful to the exclusion of all others - go for it. If two people want to have an 'open marriage' because they don't feel they need that fidelity, it's up to them to make it work. It's A-OK. Legal marriage doesn't prohibit it, so that's also not a defining feature of the legal institution of marriage.

It sounds like you're mourning the loss of these features of "marriage". Well, they're long gone for quite some time now. Allowing same-sex marriage just requires us to acknowledge that the legal institution of marriage is already a wide-open concept. You might not like how wide open it is, but that doesn't change the fact that it is. How is it not discrimination to prevent one group from joining?

Here's another analogy: Look at marriage like it was a golf club. Fifty years ago, women weren't allowed, minorities weren't allowed, etc. Then it fell on hard times and the government took it over and turned it into a public golf course. They started to allow women to play, they started to allow minorities. In fact, they put up a sign that said, "open to all". Then some people showed up at the course with their clubs and their forty dollars and the manager met them in the parking lot and said, sorry, that "open to all" sign was written before we knew that gays would actually try to play golf. You can't play. That's what's going on here - marriage has already been opened up to anything and everything, yet government feels justified in imposing/maintaining an arbitrary rule left over from days gone by that is completely inconsistent with their stance on marriage in every other respect. It just doesn't make sense.

I'm saddened by your view on "locking in" for women. You're right, I'm not a woman, but I do hope that not all women "lock into" relationships solely for security. I hope that they also try to find someone that they respect, love, etc. I also disagree with your view on women having an expiry date. And why have you given up on love?

I never said that marriage isn't work or that I didn't think I should please my partner. I didn't mention those things at all, so for the record, I think my marriage should have those things - and it does. I also do want "lock in" and I have that. That's all part of my personal view on marriage. That said, my personal view on marriage is just that - *my* personal view - there are infinitely many other views out there, and who am I to say they're not valid? Really, they're irrelevant to me and my marriage, because the people with these other views aren't married to me. It's the same with same-sex marriage. Same-sex marriage doesn't affect my marriage at all, so why not let people do what makes them happy?

Same-sex marriage has been around in Canada now for what? At least 7 years, I think. There was initially controversy and people opposing it, but they've now mostly faded away. It's turned into a complete non-issue. No one cares, because they've experienced it and found that it doesn't affect anyone who doesn't want to be in a same-sex marriage. I think 10 years from now, it'll be the same thing in the good old USA. We'll look back and say, why were we so worried about same-sex marriage?

Actually in Massachusetts there is still an active on-the-books fornication law, and it is still a crime to have sex with someone you are not married to. But even if that law were declared to be unconstitutional (which is hasn't yet been) the chief purpose of marriage would still be to protect the right of the couple to have sex and procreate offspring together. Of course marriage has all sorts of obligations that follow when being officially approved to have sex and procreate offspring together, including not being allowed to have sex and procreate with anyone else and being on the hook for finances and support, but all those things are added on to marriage and can be taken away, as with no fault divorce laws and reforming of alimony. They can't take away the approval to have sex and conceive offspring without completely gutting marriage so that it is not marriage anymore.

And I hope EJ Graff takes a little bit longer to respond to my point about stem cell derived gametes and her prioritizing the right to procreate using non-existing technology with someone of the same sex over the lives of thousands of same-sex couples who have no interest in that. Come on E.J let's resolve this thing and help those families.

I can't respond to you because you just make assertions without arguing them. You say the chief purpose of marriage is "to protect the right of the couple to have sex and procreate offspring together", but you don't say why you believe this, so discussion is impossible.

As for your Massachusetts law, that's interesting but it doesn't matter. Obviously, that law is not enforced because if anyone tried to enforce it, it would be struck down immediately. Unenforced laws are only interesting curiosities.

It's of the utmost importance to protect the right of married couples to have sex and conceive offspring together using their own genes, because if we don't protect that right people will be pressured or even forced to use "better" gametes and government would grow in power and scope as natural sex gets replaced by commercial eugenic manufacture of people. I'm a little wary of the "chief purpose" line of discussion, but I know that the one thing that marriage does and only marriage can do is make sex legal and approve of the conception of children together.

I don't think the Massachusetts fornication law would be struck down, there is a compelling societal interest in preventing unethical creation of people, including being born to unprepared and/or uncommitted couples, and extra-marital sex can ruin people's lives, it is unnecessary, it spreads diseases that can cause death and infertility, and why should the people who don't do it pay for the costs of those who do?

The answer is that there is no purpose of marriage. Its just an illusion. Make of it what you can and be happy...life is shockingly short.

As usual, the lion's share of emphasis is placed on adult aspirations whatever they may be and not on the rights of the child and what is absolutely best for them. When we look through the eyes of the child, marriage, love, rights, and every other aspect of this discussion becomes ever so clear. Millions of people who comprise future generations and who have the biggest stake in this issue, aren't here to defend their rightful place in the conversation. I've asked many a child what is the most important thing in the world to them. 100% of the time, their response has something to do with "my mom and my dad." Children do best in every way when loved and raised by their own natural and married mother and father. Redefining the institution of marriage by law, also redefines by law all familial terms such as mother, father, wife, husband, grandfather, grandmother and so one. Natural connections that are the right of the child would be redefined by law. This is in direct opposition to the right every child has to be connected, so far as a possible, to the two people whose sexual act brought them into the world. As a society, we should head in the direction of that ideal and not away from it. It is impossible to radically redefine a social institution of this grandeur without radically affecting the social goods and benefits to society that institution provides. I realize that there are imperfect people navigating through this well tested institution. But imperfection on the part of the participants is no reason to radically alter the perfect system itself. We are heading in the wrong direction by legalizing same sex marriage. And I haven't even mentioned the threat to religious freedom.

You need to be logged in to comment.
(If there's one thing we know about comment trolls, it's that they're lazy)

Connect
, after login or registration your account will be connected.