Some of the more vociferous recent discussion over at
Positive Liberty – by which I mean at the blog, not in my threads where I largely concern myself with talking pandas and such – surrounds what counts as marriage and what, therefore, counts as an argument for or against marriages of any sort and marriages of every sort. As always, I take a vaguely Wittgensteinian approach to these sorts of questions, which is to say several things.
First, like any other word that did not begin its linguistic life and remain that way as a technically defined term (like, say, “quark”), the way we use that word is going to vary over time and from place to place.
Second, the ways the uses of a word vary will more likely suggest that what these different uses nonetheless have in common is more a matter of ‘family resemblances’ than of some essential core definition. Generally, the more philosophically interesting an ordinary word like “marriage” is, the more likely it is to include within its ambit some ‘second and third cousins’ whose resemblance to each other is vague at best. Moreover, it is likely to be ambiguous (see, e.g.,
William Empson on ambiguity) in ways that cause a great deal of conceptual confusion.
Third, we have it in our power to give any word a new use. But, that said, we are foolish if we don’t expect that doing so will have consequences and we are prudent to try to think through what those consequences may be.
Moving from Wittgenstein to the more prosaic ways arguments get confused, let’s remember (or at least pretend) that there is a vast difference between the normative and the positive. What I mean is this. If the hypothetical State of Homotopia affords a legal status to some long term homosexual unions that it does not make available to heterosexual unions and it calls those unions marriages, then it is true that homosexual marriage exists in Homotopia but heterosexual marriages do not as a matter of law. Whether that’s a good or a bad thing is an entirely different sort of question.
Moreover, what we might want to say about heterosexual unions in Homotopia that, but for the different legal status, act as though they were legally married is up for grabs, too. We can call them marriages-in-fact or quasi-marriages or nonlegal marriages or just plain marriages. But we need to be clear when we say that Henry and Frank and Betty have a family resemblance that Henry and Betty have similar ears, while Betty and Frank’s eyes look similar, etc. We owe it to ourselves and to those who disagree with us to try to be painstaking about that. Otherwise, we end up just spinning our wheels conceptually.
Now, let’s return to that prehistoric, stateless ‘state of nature’ that Rousseau so loved and Hobbes so loathed and movie makers like to stock with dinosaurs and towering black obelisks. Those dioramas at the Smithsonian and all those Indiana Jones movies, aside, we really don’t know how prehistoric people lived because – duh! – they’re prehistorical. Sure, we’ve got the archeological and paleoentological evidence and so forth, but all they add up to are grist for some likely stories.
And here is roughly the story we tell ourselves outside of Vacation Bible School where a different story might be told. Primitive men (and primitive women, too!) were probably hunters / gatherers at first, and the men probably did most of the hunting while the women did most of the gathering. This is because it is easier to care for small children while gathering than while hunting and, besides, testosterone poisoned males had to run off all that steroid induced energy somehow while estrogen enhanced females pondered such things as what sort of ‘treatment’ would dress up the cave opening.
There were, luckily for us, at least enough heterosexual primitive men and women in those early days to make a go of things, species-wise. (This is why heterosexuals enjoy the honorific among some in the gay community of “breeders.”) As the evolutionary biologists tell us, homo sapiens are just like every other species when it comes to being nothing more than a DNA replicating mechanism, so both males and females were hard-wired from even before they were a separate species (or from the very instant God’s intelligent design made them that way, it really doesn’t matter for this particular story) not only to desire sex but to want to see to it that their resulting progeny survived.
But this is a problem for human beings. We have a long gestation period as a species, at least the last part of which would make the independent survival of women doubtful. So would the years and years of care and attention human offspring require in order to survive. You can care for an infant or you can go hunt and gather, but you probably can’t do both at the same time very successfully. Besides, prehistoric women really were attracted to those big handsome lugs walking around yelling “Yabba Dabba Do” and bringing home today’s catch. But Fred, who, let’s face it, was probably doing Betty on the side when Barney wasn’t around, needed to know that Pebbles was really his daughter, so he needed to come to some kind of accommodation with Wilma a bit more permanent than the old clubbing / one night stand scene.
So men and women “naturally” pair-bonded and probably many of them discovered that there were all sorts of unexpected benefits (and detriments) to the arrangement. Did they call it marriage? No, probably not, if only because what we call marriage today is a far more complex and, having gathered millennia of historical baggage, ambiguous concept. But we can meaningfully call what they had marriages if we want to as long as we recognize that what we’re talking about is how our distant cousin Rufus still looks a bit like the rest of the family.
Were there homosexual prehistoric people who pair-bonded for some of those other benefits? Who knows? As Hobbes would have us believe, life was nasty, dull, brutish and short, so even heterosexual relationships probably fell rather short of the contemporary lip service given to concepts like “Till death do we part.” But it is certainly more likely than not that whatever prehistoric homosexual activity occurred did not contribute significantly to the way primitive notions of marriage and family developed into tribes and clans and so forth along the social ‘evolutionary’ ladder to the modern nation state.
Now, unless you ascribe to notions of historical inevitability, which I certainly do not, we can probably agree that the civil, social institution of marriage, its subsequent historical religious context aside, could have developed other than it did or, at the very least, that it could now be structured differently than it is without dire social consequences.
So, for example, I have harped fairly consistently that the notion of marriage as status, derived as so much of contemporary western culture does from feudal society, is a remnant of that feudalism and should be replaced with the notion of marriage as contract. (In a nutshell, a legal status differs from the private legal relationship arising by contract in that, typically, the parties involved cannot rescind or revise the legal relationship except, if at all, with state permission. Citizenship is a status. Unfortunately, so occasionally and for some purposes are what the Supreme Court has sometimes called the suspect classifications of race and, increasingly, gender. It’s a complicated topic better left for now to a more full discussion elsewhere.)
But replacing status marriage with contract marriage, regardless of its historical baggage, need not and should not change the legal status of parent and child as a general and sociologically normative rule. (By which I mean the rebuttable but strong presupposition should be that those who sire and bear children are responsible to raise them and should be accorded the requisite legal authority to do so. A legal authority, I hasten to add, to which there must be limits to protect the legitimate interests of children whose parents significantly neglect or abuse them. And, yes, what counts as significant neglect or abuse is open to debate. Yes, too, we can and do make categorical exceptions such as that sperm bank donors have neither rights nor responsibilities regarding their subsequent progeny.)
It should be noted that, as a practical matter in an age of heterosexual serial monogamy and “blended families,” we have already significantly divorced or uncoupled (puns intended) our notions of marriage from our notions of parenthood. Whether Heather has a mommy and a daddy, two mommies, one daddy or a Hillaresque village raising her really has nothing to do with the matrimonial status of any of Heather’s custodial care providers.
* * * * *
I close this with a few observations regarding
Mr. Kuznicki’s concerns regarding what he took to be Jennifer Roback Morse’s argument on homosexual marriage. Note that I do not address or much care what her actual argument is but only his responses. As discussed above, I think that it is almost certainly true that marriage grew up “organically” around childbirth and parenting, “whether children are a part of any individual marriage or not.”
Mr. Kuznicki continues:
Others presumably are welcome to the institution, but there’s a clear element of risk to allowing just anyone in: The long history of allowing infertile heterosexual couples to form marriages is all the evidence we need to continue doing as we’ve always done, and letting them get married. The same can’t be said for same-sex couples.
Homosexual marriage, of course, does not grow up around having children. Children have to be grafted onto a same-sex pairing — by the state — and this in itself is an indication that the government is trying very hard to make equal two things that simply wouldn’t be equal in any other case.
And then there are the thought-police issues, which bother me even more. It’s far from clear to me that the state “must” protect homosexual unions if they are ever to work. But this is indeed how it’s turning out in practice. Much of this protection is just the usual PC nonsense that we’d all be better off without, as in the Canadian case. Yet this sort of protection is supposedly extraneous to any proper marriage contract itself — isn’t it?
First, what is that clear element of risk? That people will stop having or raising children? Put me in the skeptical column. As he mentions, there is a long history of marriage of infertile heterosexual couples with no significant if any adverse consequences. Moreover, among the some more than 90% heterosexual population – I’m not wedded to that percentage; plug in your own number if you wish. – we have quite a bit of evidence of children being “grafted” onto or into heterosexual families by virtue of adoption and blended marriages.
The quintessentially libertarian position, in any case, is that the burden must fall on the state not before it permits some exercise of individual freedom but before it
prohibits it. It is, by contrast, the quintessentially conservative position (of the Burkean variety) that tampering with long established traditions and institutions is so inherently risky that we must apply the social equivalent of the precautionary principle before proceeding.
Nonsense. In fact, what history (and biology) teaches is that human society is remarkably resilient and adaptable. (Besides, as the standard objection to Burke and Wm. F Buckley. Jr. goes, wherever it is one decides to stand athwart the world yelling "Stop!" is ultimately entirely arbitrary.)
As to “the usual PC nonsense that we’d all be better off without,” however, I can only add “Hear, hear!”
I end with an admission and a question. The hardly surprising admission is that I am predisposed to intense skepticism regarding those nether regions of academia known as [Insert Your Demographic Grievance Here] Studies departments. I wonder, however, whether there has been much sharing between the Women’s Studies people and the Gay Studies people over the extent to which gay and lesbian sexual behavior (which I have been told is rather different as between gay men and lesbians), as it relates or compares to heterosexual sexual behavior, is better explained in terms of sex or sexual orientation. I think the very likely answer is sex, not sexual orientation, and that, if so, that fact is highly significant to these sorts of discussions.
