American Sociological Association (Essay)

ISSUE 5

~ Should Same-Sex Marriages

Be Legally Recognized?

YES: Andrew Sullivan, from Virtually Normal: An Argument About Homosexuality (Alfred A. Knopf, 1995)

NO: James Q. Wilson, from "Against Homosexual Marriage," Com­ mentary (March 1996)

ISSUE SUMMARY

YES: Editor and author Andrew Sullivan argues that the secular lib­ eral state must grant the right of same-sex partners to marry. To not do so would be blatant discrimination.

NO: Professor of management and public policy James Q. Wilson presents arguments against legally recognizing same-sex marriages.

In 1979 in Sioux Falls, South Dakota, Randy Rohl and Grady Quinn became the first acknowledged homosexual couple in America to receive permission from their high school principal to attend the senior prom together. The National Gay Task Force hailed the event as a milestone in the progress of human rights. It is unclear what the voters of Sioux Falls thought about it, since it was not put up to a vote. However, if their views were similar to those of voters in Dade County, Florida; Houston, Texas; Wichita, Kansas; and various localities in the state of Oregon, they probably were not pleased. In referenda held in these and other areas, voters have reversed decisions by legislators and local boards that banned discrimination by sexual preference.

Yet the attitude of Americans toward the rights of homosexuals is not easy to pin down. Voters have also defeated resolutions such as the one in Califor­ nia in 1978 that would have banned the hiring of homosexual schoolteachers, or the one on the Oregon ballot in 1992 identifying homosexuality as "ab­ normal, wrong, unnatural and perverse." In some states, notably Colorado, voters have approved initiatives widely perceived as antihomosexual. But, al­ most invariably, these resolutions have been carefully worded so as to appear to oppose "speCial" rights for homosexuals. In general, polls show that a large majority of Americans believe that homosexuals should have equal rights with

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heterosexuals with regard to job opportunities. On the other hand, many view homosexuality as morally wrong.

Currently, same-sex marriages are not legally recognized by Congress. In the Defense of Marriage Act of 1996, Congress defined marriage as heterosexual. Astate does not have to recognize another state's nonheterosexual marriage. The legal situation is constantly changing because several states are experimenting with new laws. A few states permit same-sex marriage but most do not.

The issue of same-sex marriage fascinates sociologists because it represents a basic change in a major social institution and is being played out on several fields: legal, cultural/moral, and behavioral. The legal debate will be decided by courts and legislatures; the cultural/moral debate is open to all of us; and the behavioral debate will be conducted by the activists on both sides. In the readings that follow, Andrew Sullivan presents some of the arguments in favor of same-sex marriages and james Q. Wilson responds to Sullivan's assertions with his counterarguments.

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I~YESAndrew Sullivan

Virtually Normal

In everyone there sleeps A Sense of life lived according to love. To some it means the difference they could make By loving others, but across most it sweeps As all they might have been had they been loved. That nothing cures.

- Philip Larkin

If there were no alternative to today's conflicted politics of homosexuality, we might be condemned to see the proponents of the four major positions fight noisily while society stumbles from one awkward compromise to another. But there is an alternative: a politics that can reconcile the best arguments of liberals and conservatives, and find a way to marry the two. In accord with liberalism, this politics respects the law, its limits, and its austerity. It places a high pre­ mium on liberty, and on a strict limit to the regulation of people's minds and actions. And in sympathy with conservatism, this politics acknowledges that in order to create a world of equality, broader arguments may often be needed to persuade people of the need for change, apart from those of rights and govern­ ment neutrality. It sees that beneath politics, human beings exist whose private lives may indeed be shaped by a shift in public mores.

This politics begins with the view that for a small minority of people, from a young age, homosexuality is an essentially involuntary condition that can neither be denied nor permanently repressed. It is a function of both nature and nurture, but the forces of nurture are formed so early and are so complex that they amount to an involuntary condition. It is as if it were a function of nature. Moreover, so long as homosexual adults as citizens insist on the involuntary nature of their condition, it becomes politically impossible simply to deny or ignore the fact of homosexuality.

This politics adheres to an understanding that there is a limit to what politics can achieve in such a fraught area as homosexuality, and trains its focus not on the behavior of citizens in civil society but on the actions of the public and allegedly neutral state. While it eschews the use of law to legislate culture, it strongly believes that law can affect culture indirectly by its insistence on the

From Andrew Sullivan, Virtually Normal: An A'XUrnent About Homosexuality (Alfred A. Knopf, 1995). Copyright © 1995 by Andrew Sullivan. Reprinted by permission of Alfred A. Knopf, a division of Random House, Inc.

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YFS / Andrew Sullivan 79

equality of all citizens. Its goal in the area of homosexuality is simply to ensure that the liberal state live up to its promises for all its citizens. It would seek full public equality for those who, through no fault of their own, happen to be homosexual; and it would not deny homosexuals, as the other four politics do, their eXistence, integrity, dignity, or distinctness. It would attempt neither to patronize nor to exclude.

This politics affirms a simple and limited principle: that all public (as op­ posed to private) discrimination against homosexuals be ended and that every right and responsibility that heterosexuals enjoy as public citizens be extended to those who grow up and find themselves emotionally different And that is al!. No cures or re-educations, no wrenching private litigation, no political imposi­ tion of tolerance; merely a political attempt to enshrine formal public equality, whatever happens in the culture and society at large. For these reasons, it is the only politics that actually tackles the political problem of homosexuality; the only one that fully respects liberalism's public-private distinction; and, ironi­ cally, as we shall see, the only one that cuts the Gordian knot of the shame and despair and isolation that many homosexuals feel. For these reasons, perhaps, it has the least chance of being adopted by homosexuals and heterosexuals alike.

What would it mean in practice? Quite simply, an end to all proactive discrimination by the state against homosexuals. That means an end to sodomy laws that apply only to homosexuals; a recourse to the courts if there is not equal protection of heterosexuals and homosexuals in law enforcement; an equal legal age of consent to sexual activity for heterosexuals and homosex­ uals, where such regulations apply; inclusion of the facts about homosexuality in the curriculum of every government-funded school, in terms no more and no less clear than those applied to heterosexuality (although almost certainly with far less emphasis, because of homosexuality's relative rareness when com­ pared with heterosexuality); recourse to the courts if any government body or agency can be proven to be engaged in discrimination against homosexual em­ ployees; equal opportunity and inclusion in the military; and legal homosexual marriage and divorce....

Its most powerful and important elements are equal access to the mili­ tary and marriage. The military ban is by far the most egregious example of proactive public discrimination in the Western democracies. By conceding the excellent service that many gay and lesbian soldiers have given to their coun­ try, the U.S. military in recent years has elegantly clarified the specificity of the government's unfairness. By focusing on the mere public admission of homo­ sexuality in its 1993 "don't ask, don't tell" compromise, the military isolated the core issue at the heart of the equality of homosexual persons. It argued that homosexuals could serve in the military; that others could know they were ho­ mosexuals; that they could know they were homosexuals; but that if they ever so much as mentionf«l this fact, they were to be discharged. The prohibition was not against homosexual acts as such-occasional lapses by heterosexuals were not to be grounds for expulsion. The prohibition was not even against homo­ sexuality. The prohibition was against homosexuals' being honest about their sexuality, because that honesty allegedly lowered the morale of others.

80 ISSUE 5 I Should Same-Sex Marriages Be Legally Recognized?

Once the debate has been constructed this way, it will eventually, surely, be won by those advocating the admission of open homosexuals in the military. When this is the sole argument advanced by the military-it became the crux of the debate on Capitol Hill-it has the intellectual solidity of a pack of cards. One group is arbitrarily silenced to protect not the rights but the sensibilities of the others. To be sure, it won the political battle; but it clearly lost the moral and intellectual war, as subsequent court tests demonstrated. It required one of the most respected institutions in American society to impose upon its members a rule of fundamental dishonesty in order for them to perform their duties. It formally introduced hypocrisy as a rule of combat. ...

If this politics is feasible, both liberal and conservative dead ends become new beginnings. The liberal can campaign for formal public equality-for the abolition of sodomy laws, equal protection in public employment and institu­ tions, the end of the ban on openly gay men and lesbians in the military-and rightly claim that he is merely seeing that all citizens in their public capacity are treated equally. But he can also argue fervently for freedom of expression-for those on both sides of the cultural war-and for freedom of economic contract. And he can concentrate his efforts on the work of transforming civil society, the place where every liberal longs to be.

And the conservative, while opposing "special rights," is able to formulate a vision of what values the society wants to inculcate. He can point to the virtues of a loyal and dedicated soldier, homosexual or heterosexual, and celebrate his patriotism; he can involve another minority group in the collective social good. He can talk about relations between heterosexuals and homosexuals not under the rubric of a minority group seeking preferences from a majority group, but as equal citizens, each prepared and willing to contribute to the common good, so long as they are treated equally by the state.

But the centerpiece of this new politics goes further than this. The crit­ ical measure for this politics of public equality-private freedom is something deeper and more emotional, perhaps, than the military.

It is equal access to civil marriage. As with the military, this is a question of formal public discrimination,

since only the state can grant and recognize marriage. If the military ban deals with the heart of what it means to be a citizen, marriage does even more so, since, in peace and war, it affects everyone. Marriage is not simply a private con­ tract; it is a social and public recognition of a private commitment. As such, it is the highest public recognition of personal integrity. Denying it to homosexuals is the most public affront possible to their public equality.

This point may be the hardest for many heterosexuals to accept. Even those tolerant of homosexuals may find this institution so wedded to the notion of heterosexual commitment that to extend it would be to undo its very essence. And there may be religious reasons for resisting this that, within certain tradi­ tions, are unanswerable. But I am not here discussing what churches do in their private affairs. I am discussing what the allegedly neutral liberal state should do in public matters. For liberals, the case for homosexual marriage is over­ whelming. As a classic public institution, it should be available to any two citizens.

YFS I Andrew Sullivan 81

Some might argue that marriage is by definition between a man and a woman; and it is difficult to argue with a definition. But if marriage is artic­ ulated beyond this circular fiat, then the argument for its exclusivity to one man and one woman disappears. The center of the public contract is an emo­ tional, financial, and psychological bond between two people; in this respect, heterosexuals and homosexuals are identical. The heterosexuality of marriage is intrinsic only if it is understood to be intrinsically procreative; but that def­ inition has long been abandoned in Western society. No civil marriage license is granted on the condition that the couple bear children; and the marriage is no less legal and no less defensible if it remains childless. In the contemporary West, marriage has become a way in which the state recognizes an emotional commitment by two people to each other for life. And within that definition, there is no public way, if one believes in equal rights under the law, in which it should legally be denied homosexuals....

But perhaps surprisingly ... one of the strongest arguments for gay mar­ riage is a conservative one. It's perhaps best illustrated by a comparison with the alternative often offered by liberals and liberationists to legal gay marriage, the concept of "domestic partnership." Several cities in the United States have domestic partnership laws, which allow relationships that do not fit into the category of heterosexual marriage to be registered with the city and qualify for benefits that had previously been reserved for heterosexual married cou­ ples. In these cities, a variety of interpersonal arrangements qualify for health insurance, bereavement leave, insurance, annuity and pension rights, housing rights (such as rent-control apartments), adoption and inheritance rights. Even­ tually, the aim is to include federal income tax and veterans' benefits as well. Homosexuals are not the only beneficiaries; heterosexual "live-togethers" also qualify.

The conservative's worries start with the ease of the relationship. To be sure, potential domestic partners have to prove financial interdependence, shared living arrangements, and a commitment to mutual caring. But they don't need to have a sexual relationship or even closely mirror old-style mar­ riage. In principle, an elderly woman and her live-in nurse could qualify, or a pair of frat buddies. Left as it is, the concept of domestic partnership could open a Pandora's box of litigation and subjective judicial decision making about who qualifies. You either are or you're not married; it's not a complex question. Whether you are in a domestic partnership is not so clear.

More important for conservatives, the concept of domestic partnership chips away at the prestige of traditional relationships and undermines the prior­ ity we give them. Society, after all, has good reasons to extend legal advantages to heterosexuals who choose the formal sanction of marriage over simply living together. They make a deeper commitment to one another and to society; in ex­ change, society extends certain benefits to them. Marriage provides an anchor, if an arbitrary anCi often weak one, in the maelstrom of sex and relationships to which we are all prone. It provides a mechanism for emotional stability and economic security. We rig the law in its favor not because we disparage all forms of relationship other than the nuclear family, but because we recognize that not to promote marriage would be to ask too much of human virtue....

82 ISSUE 5 I Should Same-Sex Marriages Be Legally Recognized?

Any heterosexual man who takes a few moments to consider what his life would be like if he were never allowed a formal institution to cement his relationships will see the truth of what I am saying. Imagine life without a recognized family; imagine dating without even the possibility of marriage. Any heterosexual woman who can imagine being told at a young age that her attraction to men was wrong, that her loves and crushes were illicit, that her destiny was single-hood and shame, will also appreciate the point. Gay marriage is not a radical step; it is a profoundly humanizing, traditionalizing step. It is the first step in any resolution of the homosexual question-more important than any other institution, since it is the most central institution to the nature of the problem, which is to say, the emotional and sexual bond between one human being and another. If nothing else were done at all, and gay marriage were legalized, ninety percent of the political work necessary to achieve gay and lesbian equality would have been achieved. It is ultimately the only reform that truly matters.

... It has become a truism that in the field of emotional development, homosexuals have much to learn from the heterosexual culture. The values of commitment, of monogamy, of marriage, of stability are all posited as models for homosexual existence. And, indeed, of course, they are. Without an archi­ tectonic institution like that of marriage, it is difficult to create the conditions for nurturing such virtues, but that doesn't belie their importance.

It is also true, however, that homosexual relationships, even in their cur­ rent, somewhat eclectic form, may contain features that could nourish the broader society as well. Precisely because there is no institutional model, gay re­ lationships are often sustained more powerfully by genuine commitment. The mutual nurturing and sexual expressiveness of many lesbian relationships, the solidity and space of many adult gay male relationships, are qualities sometimes lacking in more rote, heterosexual couplings. Same-sex unions often incorpo­ rate the virtues of friendship more effectively than traditional marriages; and at times, among gay male relationships, the openness of the contract makes it more likely to survive than many heterosexual bonds. Some of this is unavail­ able to the male-female union: there is more likely to be greater understanding of the need for extramarital outlets between two men than between a man and a woman; and again, the lack of children gives gay couples greater free­ dom. Their failures entail fewer consequences for others. But something of the gay relationship's necessary honesty, its flexibility, and its equality could undoubtedly help strengthen and inform many heterosexual bonds....

As I've just argued, I believe strongly that marriage should be made avail­ able to everyone, in a politics of strict public neutrality. But within this model, there is plenty of scope for cultural difference. There is something baleful about the attempt of some gay conservatives to educate homosexuals and lesbians into an uncritical acceptance of a stifling model of heterosexual normality. The truth is, homosexuals are not entirely normal; and to flatten their varied and complicated lives into a single, moralistic model is to miss what is essential and exhilarating about their otherness.

NO+tY James Q. Wilson

Against Homosexual Marriage

Our courts, which have mishandled abortion, may be on the verge of mis­ handling homosexuality. As a consequence of two pending decisions, we may be about to accept homosexual marriage.

In 1993 the supreme court of Hawaii ruled that, under the equal-protec­ tion clause of that state's constitution, any law based on distinctions of sex was suspect, and thus subject to strict judicial scrutiny. Accordingly, it reversed the denial of a marriage permit to a same-sex couple, unless the state could first demonstrate a "compelling state interest" that would justify limiting mar­ riages to men and women.... [I]n the meantime, the executive branch of Hawaii appointed a commission to examine the question of same-sex marriages; its re­ port, by a vote of five to two, supports them. The legislature, for its part, holds a different view of the matter, haVing responded to the court's decision by pass­ ing a law unambiguously reaffirming the limitation of marriage to male-female couples.

. . . [S]ince the United States Constitution has a clause reqUiring that "full faith and credit shall be given to the public acts, records, and judicial proceed­ ings of every other state," a homosexual couple in a state like Texas, where the population is overwhelmingly opposed to such unions, may soon be able to fly to Hawaii, get married, and then return to live in Texas as lawfully wedded....

Contemporaneous with these events, an important book has appeared un­ der the title Virtually Normal. In it, Andrew Sullivan, the editor of the New Republic, makes a strong case for a new policy toward homosexuals. He argues that "all public (as opposed to private) discrimination against homosexuals be ended.... And that is all." The two key areas where this change is necessary are the military and marriage law. Lifting bans in those areas, while also dis­ allowing antisodomy laws and providing information about homosexuality in publicly supported schools, would put an end to the harm that gays have en­ dured. Beyond these changes, Sullivan writes, American society would need no "cures [of homophobia] or reeducations, no wrenching private litigation, no political imposition of tolerance."

It is hard to imagine how Sullivan's proposals would, in fact, end efforts to change private behavior toward homosexuals, or why the next, inevitable, step would not involve attempts to accomplish just that purpose by using cures

From James Q. Wilson, "Against Homosexual Maniage/ Commentary (March 1996). Copyright © 1996 by The American Jewish Committee. Reprinted by permission. Notes omitted.

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84 ISSUE 5 I Should Same-Sex Marriages Be Legally Recognized?

and reeducations, private litigation, and the political imposition of tolerance. But apart from this, Sullivan-an English Catholic, a homosexual, and someone who has on occasion referred to himself as a conservative-has given us the most sensible and coherent view of a program to put homosexuals and heterosexuals on the same public footing....

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Sullivan recounts three main arguments concerning homosexual marriage, two against and one for. He labels them prohibitionist, conservative, and liberal. (A fourth camp, the "liberationist," which advocates abolishing all distinctions between heterosexuals and homosexuals, is also described-and scorched for its "strange confluence of political abdication and psychological violence.") I think it easier to grasp the origins of the three main arguments by referring to the principles on which they are based.

The prohibitionist argument is in fact a biblical one; the heart of it was stated by Dennis Prager in an essay in the Public Interest ("Homosexuality, the Bible, and Us," Summer 1993). When the first books of the Bible were written, and for a long time thereafter, heterosexual love is what seemed at risk. In many cultures-not only in Egypt or among the Canaanite tribes surrounding andent Israel but later in Greece, Rome, and the Arab world, to say nothing of large parts of China, Japan, and elsewhere-homosexual practices were common and widely tolerated or even exalted. The Torah reversed this, making the family the central unit of life, the obligation to marry one of the first responsibilities of man, and the linkage of sex to procreation the highest standard by which to judge sexual relations. Leviticus puts the matter sharply and apparently beyond qUibble:

Thou shalt not live with mankind as with womankind; it is an abomina­ tion.... If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be upon them.

Sullivan acknowledges the power of Leviticus but deals with it by placing it in a relative context. What is the nature of this "abomination"? Is it like killing your mother or stealing a neighbor's bread, or is it more like refusing to eat shellfish or having sex during menstruation? Sullivan suggests that all of these injunctions were written on the same moral level and hence can be accepted or ignored as a whole. He does not fully sustain this view, and in fact a refutation of it can be found in Prager's essay. In Prager's opinion and mine, people at the time of Moses, and for centuries before him, understood that there was a fundamental difference between whom you killed and what you ate, and in all likelihood people then and for centuries earlier linked whom you could marry closer to the principles that defined life than they did to the rules that defined diets.

The New Testament contains an equally vigorous attack on homosexual­ ity by St. Paul. Sullivan partially deflects it by noting Paul's conviction that the

NO I James Q. Wilson 85

earth was about to end and the Second Coming was near; under these condi­ tions, all forms of sex were suspect. But Sullivan cannot deny that Paul singled out homosexuality as deserving of special criticism. He seems to pass over this obstacle without effective retort.

Instead, he takes up a different theme, namely, that on grounds of con­ sistency many heterosexual practices-adultery, sodomy, premarital sex, and divorce, among others-should be outlawed equally with homosexual acts of the same character. The difficulty with this is that it mistakes the distinction alive in most people's minds between marriage as an institution and marriage as a practice. As an ins!itution, it deserves unqualified support; as a practice, we recognize that married people are as imperfect as anyone else. Sullivan's un­ derstanding of the prohibitionist argument suffers from his unwillingness to acknowledge this distinction.

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The second argument against homosexual marriage-Sullivan's conservative cat­ egory-is based on natural law as originally set forth by Aristotle and Thomas Aquinas and more recently restated by Hadley Arkes, John Finnis, Robert George, Harry V. Jaffa, and others. How it is phrased varies a bit, but in general its advocates support a position like the follOWing: man cannot live without the care and support of other people; natural law is the distillation of what thoughtful people have learned about the conditions of that care. The first thing they have learned is the supreme importance of marriage, for without it the newborn infant is unlikely to survive or, if he survives, to prosper. The necessary conditions of a decent family life are the acknowledgement by its members that a man will not sleep with his daughter or a woman with her son and that neither will openly choose sex outside marriage.

Now, some of these conditions are viQlated, but there is a penalty in each case that is supported by the moral convictions of almost all who witness the violation. On simple utilitarian grounds it may be hard to object to incest or adultery; if both parties to such an act welcome it and if it is secret, what dif­ ferences does it make? But very few people, and then only ones among the overeducated, seem to care much about mounting a utilitarian assault on the family. To this assault, natural-law theorists respond much as would the average citizen-never mind "utility," what counts is what is right. In particular, homo­ sexual uses of the reproductive organs violate the condition that sex serve solely as the basis of heterosexual marriage.

To Sullivan, what is defective about the natural-law thesis is that it assumes different purposes in heterosexual and homosexual love: moral consummation in the first case apd pure utility or pleasure alone in the second. But in fact, Sullivan suggests, "homosexual love can be as consummatory as heterosexual. He notes that as the Roman Catholic Church has deepened its understanding of the involuntary-that is, in some sense genetic-basis of homosexuality, it has attempted to keep homosexuals in the church as objects of affection and nurture, while banning homosexual acts as perverse.

ISSUE 5 I Should Same-Sex Marriages Be Legally Recognized? 86

But this, though better than nothing, will not work, Sullivan writes. To show why, he adduces an analogy to a sterile person. Such a person is per­ mitted to serve in the military or enter an unproductive marriage; why not homosexuals? If homosexuals marry without procreation, they are no different (he suggests) from a sterile man or woman who marries without hope of pro­ creation. Yet people, I think, want the form observed even when the practice varies; a sterile marriage, whether from choice or necessity, remains a marriage of a man and a woman. To this Sullivan offers essentially an aesthetic response. Just as albinos remind us of the brilliance of color and genius teaches us about moderation, homosexuals are a "natural foil" to the heterosexual union, "a vari­ ation that does not eclipse the theme." Moreover, the threat posed by the foil to the theme is slight as compared to the threats posed by adultery, divorce, and prostitution. To be consistent, Sullivan once again reminds us, society would have to ban adulterers from the military as it now bans confessed homosexuals.

But again this misses the point. It would make more sense to ask why an alternative to marriage should be invented and praised when we are having enough trouble maintaining the institution at all. Suppose that gay or lesbian marriage were authorized; rather than producing a "natural foil" that would "not eclipse the theme," I suspect such a move would call even more seriously into question the role of marriage at a time when the threats to it, ranging from single-parent families to common divorces, have hit record highs. Ken­ neth Minogue recently wrote of Sullivans's book that support for homosexual marriage would strike most people as "mere parody," one that could further weaken an already strained institution.

To me, the chief limitation of Sullivan's view is that it presupposes that marriage would have the same, domesticating effect on homosexual members as it has on heterosexuals, while leaving the latter largely unaffected. Those are very large assumptions that no modern society has ever tested.

Nor does it seem plausible to me that a modern society resists homosexual marriages entirely out of irrational prejudice. Marriage is a union, sacred to most, that unites a man and woman together for life. It is a sacrament of the Catholic Church and central to every other faith. Is it out of misinformation that every modem society has embraced this view and rejected the alternative? Societies differ greatly in their attitude toward the income people may have, the relations among their various races, and the distribution of political power. But they differ scarcely at all over the distinctions between heterosexual and homosexual couples. The former are overwhelmingly preferred over the latter. The reason, I believe, is that these distinctions involve the nature of marriage and thus the very meaning~ven more, the very possibility-of SOciety.. , .

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Let us assume for the moment that a chance to live openly and legally with another homosexual is desirable. To believe that, we must set aside biblical injunctions, a difficult matter in a profoundly religious nation. But suppose we manage the diversion, perhaps on the grounds that if most Americans skip church, they can as readily avoid other errors of (possibly) equal magnitude.

NO I James Q. Wilson 87

Then we must ask on what terms the union shall be arranged. There are two alternatives-rnarriage or domestic partnerShip.

Sullivan acknowledges the choice, but disparages the domestic-partner­ ship laws that have evolved in some foreign countries and in some American localities. His reasons, essentially conservative ones, are that domestic partner­ ships are too easily formed and too easily broken. Only real marriages matter. But-aside from the fact that marriage is in serious decline, and that only slightly more than half of all marriages performed in the United States this year will be between never-before-married heterosexuals-what is distinctive about marriage is that it is an institution cr~ated to sustain child-rearing. Whatever losses it has suffered in this respect, its function remains what it has always been.

The role of raising children is entrusted in principle to married heterosex­ ual couples because after much experimentation-several thousand years, more or less-we have found nothing else that works as well. Neither a gay nor a les­ bian couple can of its own resources produce a child; another party must be involved. What do we call this third party? A friend? A sperm or egg bank? An anonymous donor? There is no settled language for even describing, much less approving of, such persons.

Suppose we allowed homosexual couples to raise children who were cre­ ated out of a prior heterosexual union or adopted from someone else's hetero­ sexual contact. What would we think of this? There is very little research on the matter. Charlotte Patterson's famous essay, "Children of Gay and Lesbian Parents" (Journal ofChild and Development, 1992), begins by conceding that the existing studies focus on children born into a heterosexual union that ended in divorce or that was transformed when the mother or father "came out" as a homosexual. Hardly any research has been done on children acquired at the outset by a homosexual couple. We therefore have no way of knowing how they would behave. And even if we had such studies, they might tell us rather little unless they were conducted over a very long period of time.

But it is one thing to be born into an' apparently heterosexual family and then many years later to learn that one of your parents is homosexual. It is quite another to be acqUired as an infant from an adoption agency or a parent-for­ hire and learn from the first years of life that you are, because of your family's position, radically different from almost all other children you will meet. No one can now say how grievous this would be. We know that young children tease one another unmercifully; adding this dimension does not seem to be a step in the right direction.

Of course, homosexual "families," with or without children, might be rather few in number. Just how few, it is hard to say. Perhaps Sullivan himself would marry, but, given the great tendency of homosexual males to be promiS­ cuous, many more like him would not, or if they did, would not marry with as much seriousness:

That is problematic in itself. At one pOint, Sullivan suggests that most ho­ mosexuals would enter a marriage "with as much (if not more) commitment as heterosexuals." Toward the end of this book, however, he seems to withdraw from so optimistic a view. He admits that the label "virtually" in the title of his

88 ISSUE 5 / Should Same-Sex Marriages Be Legally Recognized?

book is deliberately ambiguous, because homosexuals as a group are not "nor­ mal." At another point, he writes that the "openness of the contract" between two homosexual males means that such a union will in fact be more durable than a heterosexual marriage because the contract contains an uunderstanding of the need for extramarital outlets" (emphasis added). But no such "understand­ ing" exists in heterosexual marriage; to suggest that it might in homosexual ones is tantamount to saying that we are now referring to two different kinds of arrangements. To justify this difference, perhaps, Sullivan adds that the very "lack of children" will give "gay couples greater freedom." Freedom for what? Freedom, I think, to do more of those things that heterosexual couples do less of because they might hurt the children.

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The courts in Hawaii and in the nation's capital must struggle with all these is­ sues under the added encumbrance of a contemporary outlook that makes law the search for rights, and responsibility the recognition of rights. Indeed, think­ ing of laws about marriage as documents that confer or withhold rights is itself an error of fundamental importance-Qne that the highest court in Hawaii has already committed. "Marriage," it wrote, "is a state-conferred legal-partnership status, the existence of which gives rise to a multiplicity of rights and bene­ fits...." A state-conferred legal partnership? To lawyers, perhaps; to mankind, I think not....

Our challenge is to find a way of formulating a policy with respect to 5' homosexual unions that is not the result of a reflexive act of judicial rights­ conferring, but is instead a considered expression of the moral convictions of a people.

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POSTSCRIPT ~

Should Same-Sex Marriages Be Legally Recognized?

T he issue of the L:ights of homosexuals creates a social dilemma. Most people would agree that all members of society should have equal rights. However, the majority may disapprove of the lifestyles of a minority group and pass laws against some of their behaviors. The question is: When do these laws violate civil rights? Are laws against same-sex marriage such a violation?

There is a considerable literature on homosexuality. Recent works on the history of the gay rights movement include Dudley Clendinen and Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement in America (Simon & Schuster, 1999); Ronald). Hunt, Historical Dictionary of the Gay Lib­ eration Movement (Scarecrow Press, 1999); and John Loughery, The Other Side of Silence: Men's Lives and Gay Identities: A Twentieth-Century History (Henry Holt, 1998). For broad academic works on homosexuality see Kath Weston, Long Slow Burn: Sexuality and Social Science (Routledge, 1998); Alan Sinfield, Gay and After (Serpent's Tail, 1998); and Michael Ruse, Homosexuality: A Philosophical Inquiry (Blackwell, 1998). Recent works that focus on homosexual rights include David A. ). Richards, Identity and the Case for Gay Rights (University of Chicago Press, 1999); Morris B. Kaplan, Sexual Justice (Routledge, 1997); James Button, et al., Private Lives, Public Conflicts: Battles Over Gay Rights in American Communities (CQ Press, 1997); and Carl F. Stychin, A Nation by Rights: National Cultures, Sexual Identity Politics, and the Discourse of Rights (Temple University Press, 1998). On the antigay rights movement see Stephanie L. Whitt and Suzanne McCorkle, eds., Anti-Gay Rights: Assessing Vot€r Initiatives (Praeger, 1997). For an examination of prejudice against homosexuals see Gregory M. Herek, ed., Stigma and Sexual Orientation: Understanding Prejudice Against Lesbians, Gay Men, and Bisexuals (Sage, 1998). For a reader on same-sex marriage see Andrew Sullivan, Same-Sex Marriage, Pro and Con: A Reader (Random House, 1997). The best work on human sexual practices is Edward O. Laumann, John H. Gagnon, Robert T. Michael, and Stuart Michaels, The Social Organization of Sexuality: Sexual Practices in the United States (University of Chicago Press, 1994).

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