In light of the current California Supreme Court case, Perry v. Schwarzenegger, against Proposition 8, opinion columnists have been decrying the injustice leveled against those members of society barred from engaging in homosexual marriage. A recent article in the San Francisco Chronicle states that, "The plaintiffs, two same-sex couples and the city of San Francisco, say the ballot measure, promoted as a restoration of traditional marriage, was a thinly veiled appeal to anti-gay bias. That argument, if successful, would make it easier for them to prove that Prop. 8 violates the constitutional guarantee of equal protection."
After all, in line with this reasoning, how can a community deny marriage to some of its members, regardless of sexual orientation, when marriage is, "at its core, a contractual agreement that confers certain legal privileges and responsibilities on its signatories, as well as social respect"? (LA Times)
These claims provoke some important questions: is it discrimination to declare someone is unable to marry, and is marriage a mere contractual union that confers legal and social benefits? Moreover, from what are homosexual couples seeking protection--discrimination, or something else?
As to the first question, the answer undeniably depends both on how a society views marriage, and more importantly, on what marriage in fact is. The position of Californians who have already voted for marriage as being between a man and a woman is at least clear. So an argument that the consciousness of our culture clearly views marriage in a manner that would easily include homosexual unions is at minimum specious.
But in some respects the more fundamental question is, what is marriage at all? What is marriage in itself, aside from current conventions (which are so disparate as to be an unreliable source of information anyway)? According to the LA Times column mentioned above, marriage is merely a social contract. One must ask, though, in light of this bankrupt definition of marriage, if marriages are contractual unions that benefit signatories, legally and socially, why don't we throw a wedding reception after the merger of two esteemed companies? Is it not clear that this definition is so absent of any meaningful content that it actually includes (by definition) polygamy, verbal contracts, company mergers, treaties and any other legally binding agreement (that is socially praiseworthy)?
In order to define marriage, one has to mark out its distinguishing characteristics (such as a directedness to new life, embodied through sexual activity that would be fulfilled by the coming to be of new life), not the character it has in common with every other social contract. Here, people want to define marraige in a way that is inclusive, but often the posed definition fails to be meaningful. When defining some reality you look to the reality itself in order to discern what it is: it is the entity, object, or reality that appropriates a definition, not the definition that appropriates reality.
Here, I'm not setting up a slippery slope argument, saying if homosexual unions are allowed to be considered marriage then inevitably we will have to say any contract results in a marriage. Rather, I'm noting the absence of sufficient content in a posed definition of marriage. And the definition in the LA Times is about as meaningless as defining a triangle as a shape with at least one side. Sure, a triangle is a shape and it does have at least one side, but this doesn't mark out its specific character.
What is at stake in the current case is not a re-definition of marriage, but rather it is an attempt to strip the thoroughgoing definition of enough content so as to include homosexual unions in the mix. But this comes with a price; marriage would no longer be defined as a community comprised of a man and a woman that would be fulfilled by the bearing, raising, and conceiving of children. It would become a mere social contract set up in response to a question of social and legal benefits.
Something has to give in this tension: either marriage is a mere social contract or it is something more. Can individuals who support a traditional view of marriage be rightfully charged with discrimination? One can at least grant that they have decided not to endorse homosexual unions as being fundamentally equal to marriage. And this is the stimulus of claims that supporting a traditional view of marriage is a "thinly veiled appeal to anti-gay bias."
This is perhaps one of the other confusing claims often postulated by those who seek to dilute the content of the word, marriage: endorsement of traditional marriage (which implicitly denies recognition of homosexual unions as marriage) is decidedly anti-gay, and thereby discriminatory. A reasonable supporter of traditional marriage isn't necessarily anti-gay, even though by implication he is opposed to calling homosexual unions marriage. Admittedly, there have been individuals who have unjustly treated members of the homosexual community. But this is neither the hope nor the goal of those who seek to preserve marriage as heterosexual. If the supporters of Proposition 8 were anti-gay, they wouldn't be satisfied with the preservation of marriage as heterosexual. Rather, they would be attempting to enact laws that criminalize homosexual partnerships, or homosexual acts.
Proposition 8 did nothing to alter the California state law as to what benefits were attainable through civil unions, or legal homosexual partnerships. Homosexual couples are still provided with an essential element of the definition of "marriage" proposed by the LA Times. They have access to "a contractual agreement that confers certain legal privileges and responsibilities on its signatories"; yet they feel as though they lack another privilege: "social respect."
Legal privileges and responsibilities are not enough; public endorsement and approval is the last remaining hurdle for the homosexual community--an endorsement that states homosexual unions, "a contractual agreement that confers benefits," are the same as marriage understood heterosexually. But they are simply not the same, particularly in this respect. Marriage is a community wherein the sexual activity of the man and the woman has an integral connection to the kind of community it is, namely as the kind of community that would be fulfilled by the conceiving, bearing, and raising of children. The sexual activity of the married couple is an integral aspect of their marital community because it is the kind of activity that would be fulfilled by new life.
Yet, the sexual activities in homosexual unions have no integral relationship to the kind of community they form. While homosexual couples do of course raise children, their sexual activities have nothing to do with that part of their community. They have a community formed to produce legal and social benefits (such as raising children), and they have another community of affectionate sexual activity. Moreover, their sexual activity is not an activity that would be fulfilled by the coming to be of new life. In other words, within homosexual unions there is a disintegration of sexual activity and the kind of community formed, which is not present in marriage as heterosexual; and this is the marked difference between these two communities.
Doesn't it then at least seem odd that the homosexual community would seek public endorsement of their unions as equal to the kind of community whose sexual activity would be fulfilled by the coming to be of new life?
To say that equal protection under the law, as proposed in the XIV Amendment, is grounds to be protected from a failure of public endorsement is stretching that statute a bit too far. If one can demand endorsement by the political community of a lifestyle choice, shouldn't heterosexual couples by the same principle have sufficient grounds to demand that homosexual couples endorse their lifestyle choice? But this could never work, for if homosexual couples did this they would implicitly deny their own communities. For they would endorse a condition they themselves cannot meet, namely an integral relation of sexual activity and marital community.
We will have it only one way: either the political community will endorse traditional marriage, which in turn implicitly denies homosexual unions as being the same kind of community; or it will endorse homosexual unions, and thereby deny the defining attributes of marriage as it currently stands.
