Ross Douthat's effort to respond to all the substantive criticisms of his recent column on same-sex marriage is admirable, but like the defenders of Proposition 8 in Perry v. Schwartzenegger, he's unable to show any concrete way in which heterosexual couples would be harmed by allowing same-sex couples to marry.
Ezra Klein has already responded to Douthat, but I just want to start with this statement from Eve Tushnet, whom Douthat quotes:
So if humans were perfectly able to control their reproduction, could pick when they had kids and with whom, and men and women are interchangeable both socially and biologically, then you don't have marriage. Why would you? It arises to manage not only procreation, but also the social and biological differences between men and women prior to reproduction.
Well, this isn't an argument against same-sex marriage; it's an argument against birth control and gender equality. And in this sense, the apocalypse for Douthat and Tushnet has already happened. With effort and economic resources, humans can already control their reproduction, whom they have kids with and when. It must be obvious even to Douthat that most heterosexual adults do not regulate their sexual behavior prior to marriage, nor does the law require them to, nor does the state have a compelling interest that justifies such an interference with individual liberty. Again, Tushnet and Douthat are holding on to a concept of how relationships work that really no longer exists and are putting the burden on gays and lesbians to maintain the fantasy. Douthat has developed a very sophisticated version of the argument that straight marriages will somehow be harmed by allowing same-sex marriages. But like the defenders of Prop. 8 in court, he cannot offer a single concrete example of how; he can only argue that his ideal of marriage would somehow be defended, an ideal that can't really be said to actually exist in real life.
Tushnet's argument above becomes all the more absurd when you consider that the only people who can truly regulate and perfectly control their reproduction are same-sex couples, and yet same-sex couples who support marriage equality want nothing more than to be able to have their unions and families recognized by the state. Marriage continues to exist right here in the nation's capital, with its public recognition of same-sex couples in civil marriage, in defiance of both Douthat's and Tushnet's predictions.
The only reason Douthat and Tushnet would not recognize same-sex marriage as marriage is because "the interplay of fertility, reproductive impulses and gender differences in heterosexual relationships is, for want of a better word, 'thick.' All straight relationships are intimately affected by this interplay in ways that gay relationships are not." Maybe it's true that heterosexual relationships are affected by these factors in a way that homosexual relationships are not, but Douthat never makes it clear why these hypothetical differences would be harmed or even affected by same-sex marriages, let alone how said harm would justify the state's prohibition of same-sex couples in getting married. This "interplay" between heterosexual couples won't cease to exist because of same-sex marriage any more than heterosexual couples would cease procreating.
Whether or not "marriage" will change is beside the point -- human relationships change, and the institutions that codify them go along. The fundamental question is whether the state has any compelling reason to legally prevent that from happening.
The marital ideal that justifies calling gay unions “marriage,” by contrast, is necessarily much thinner, because it's an ideal that needs to encompass not two but three different kinds of sexual relationships — straight, gay male, and lesbian. So it ends up being about the universals of love and commitment, rather than any of the particular dynamics of heterosexual intimacy. And I think this thinness is a problem: It makes it that much harder to imagine the marital institution doing the kind of work that it was originally developed to do, and needs to do now more than ever — the work, as Tushnet puts it, of directly addressing “the specific ways in which sex between a man and woman can be really devastating to society, or really fruitful.”
I suspect "the universals of love and commitment" are already how most people imagine the ideal marriage, but the state does not regulate or require such things as prerequisite for heterosexuals marrying, or celebrity weddings would be illegal.
The point of mentioning my parents the other day, and their lack of awareness about the Loving decision, was just to explain that my parents' marriage was apolitical. They weren't trying to show the world that black people and white people could get along, they weren't trying to smooth over the rough scars of history. They just happened to love each other in an era where it would be illegal for them to get married. The same is true of same-sex couples -- they aren't trying to make a point about gender or society or anything else. They just happen to love each other in an era when many states refuse to provide their unions with legal recognition. I'm somewhat bewildered by Tushnet's and Douthat's parsing of the importance of gender roles in marriage, because it can't possibly be as important to defining the institution as the love these people share. That love is more familiar to me as a vital part of marriage than whatever complex interplay Douthat and Tushnet are attached to.
