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Same-Sex Marriage

A term used to describe a legally or socially recognized marriage between two persons of the same biological sex or social gender.

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This Topic is a Can of Worms

Feb 10, 2011

by einhverfr

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Rather than express an opinion, I want to discuss some of the problems inherent in this discussion, especially where the courts are involved.

In the interest of full disclosure I think that same-sex marriage should be legalized in the United States either through the courts or through the legislative process, but I am deeply concerned that many of the simplistic arguments on both sides of the issue would result in severe and unintended consequences. I also do oppose strongly the idea that same-sex marriage should be legalized around the globe. If were it to be legalized around the globe, I would expect culture to heavily restrict it.

What is Marriage?

As Ronald Grimes (in "Deeply into the Bone: Re-Inventing Rites of Passage") points out, marriage is universally recognized and ritualized around the world, despite there being no biological imperative to the process (unlike birth or death). As he also points out, the definition of marriage is purely cultural. Some cultures, such as ours, see marriage as primarily an individual commitment of support, while others see it as a carefully orchestrated merging of extended families. Some see it as an exchange of property.

Despite the best efforts of the allies to change Japanese culture, fully 30% of marriages in Japan are fully arranged today, and the others are usually at least partially arranged. While due to laws from the Occupation, individuals have a legal right not to have an arranged marriage, a substantial minority choose not to exercise that right.

Trying to define marriage as one man and one woman fails to be a universal concept within the West too, since polygamy has been practised in much of Europe at one time or another, and some of the earliest surviving Christian liturgies are for same-sex marriages (again as Grimes documents). So we have to step back and realize there is no universal form to marriage.

Rather, I think, marriage can be seen more universally as a fairly complex bundle of procreation rights, family ties, and responsibilities of support, though these can vary considerably both in both form and function between cultures.

In the United States, we see marriage as purely heterosexual and monogamous. Women often feel under intense pressure to get married in ways we define it in this country. Even if same-sex marriage was legally recognized it would not get rid of this expectation to have the picture-perfect heterosexual wedding. Having talked to many gay, bisexual, and polyamorous women over the years, one theme that comes up over and over is the sense of having to give up on the dream wedding and the psychological pain that comes with this. Whatever our government does, it is unlikely to reduce this pressure. In fact as I will illustrate below, even the pro-same-sex rhetoric reinforces this expectation of heterosexual marriage.

The reason for this pressure felt by women is not a top-down control system but rather an outgrowth of our capitalist economy especially combined with the idea that the model for normalcy is the heterosexual, monogamous wedding. Young girls and women are sold this concept by vendors as diverse as Mattel, Disney, bridal magazines, wedding photographers, etc. Weddings are very profitable to make happen and as long as the vast majority of weddings are heterosexual, that is what will be sold. When you combine this with the ideas of sexual orientation being a biologically determined, static concept, you have a very powerful set of constraints culturally on same-sex weddings under any name. This is well documented by Ronald Grimes as well.

While the controls of male sexuality are less well studies, I think we can assume that they are comparable even if they are certainly different in form.

Is Marriage a "Fundamental Right" to be free from state control?

One of the findings in the recent Prop 8 case that I found troubling with the idea that marriage is a fundamental right that the state may only interfere with if it meets strict scrutiny. The problem with this argument is that it reaches well beyond the same-sex marriage issue and impacts the ability of states to set marriage policy more generally. For example, a majority of states do not allow first cousins to marry, but a large minority allow at least some first cousins to do so. One state (North Carolina) allows first cousins to marry unless they are "double first cousins" meaning that both pairs of grandparents are shared.

To my knowledge Arizona is the only state which purports to deny first cousin couples duly and legally married elsewhere married status in their state, although the only challenge to this law I am aware of (Cook v. Cook, 2005) only looked at it on retroactivity grounds.

If marriage is a fundamental right of this sort, and if that means that states may not prevent certain couples from getting married without meeting a high level of scrutiny, then I think that all first-cousin marriage bans would be unconstitutionally overbroad.

While we are very individualistic in our ideology of marriage in this country, I do not think that this really has the effects people want in that it would make virtually any restriction in who could get married subject to a wide variety of court challenges both facial ("the law is Unconstitutional") and as-applied ("you cannot Constitutionally apply that law to me in this way").

Why Marriage? Who is the Marriage For Anyway?

It's also necessary to look at the social functions of marriage both here in the US and world-wide. Here we believe in maintaining our independence (or at least staying out of our children's lives!) until we die. This illusion is maintained by shipping old people off to nursing homes. In many other cultures, parents move in with their children when they retire, and having children of one's own is a primary method of being supported in old age.

Moreover, while we in the US tend to see marriage as being for the individuals involved, in many parts of the world, marriage is primarily for the extended families involved. Interestingly, the Hindu marriage arrangement process is largely designed to accommodate both the individuals and the extended families.

These two questions do not have answers independent of culture. While we should seek our own answers in this culture relative to this question I do not think we should be pushing them on everyone else.

It is particularly worth noting that in cultures where children provide support for retirees, this leads to a personal duty to have children. Adoption is not always as readily available as one would like and sperm banks are not much often readily available either. Legalizing same-sex marriage in these cases will do absolutely nothing about the practical and social necessities to "get married and have kids of one's own."

Moreover legalizing same-sex marriage will probably have virtually no impact on cultures where marriage is seen as a family duty rather than an individual commitment.

Cultural Controls: Biological Determinism and Preventing Homosexual Activity

There is a modern idea that sexual orientation is completely biologically determined. This makes sense. It sounds scientific, and our culture worships science almost as a religion, affording scientific progress considerable political status (something Robbie Davis-Floyd calls "Technocracy" in "Birth as an American Rite of Passage").

While scientists are largely unanimous that there is a biological substrate to what we perceive to be sexual orientation, there is no such consensus on the idea that "sexual orientation" is a purely biological state. In fact, when looking at this from a more anthropological perspective, the very concept of sexual orientation looks not only like a cultural construct but one designed to discourage homosexual activity.

The first thing that must be remembered is that humans are very social animals. The need to fit in socially, particularly with the majority or in-power group probably also has a biological substrate, as does our ability to learn language at an early age. Our bodies and our brains have evolved with social conditioning guiding them. Moreover, in most cultures sex is often tied to power so many of these things cannot be easily separated.

There are cultures which engage in ritual homosexual activity (such as male-male oral sex) as a way of initiating boys into adulthood. In ancient Sparta, it was common for adult males to have sexual relationships with adolescent boys who they were also sponsoring through military training. In essence the rates of males in particular in societies who have sexual relationships with other men varies drastically culture by culture, from 100% down to virtually zero. We, in the United States today, are in the lower end of that spectrum.

By preaching biological determinism along with social expectations, we send very powerful, repetitive messages to our children, telling them not to be gay. This is particularly strong with young women who are indoctrinated into the idea of having a perfect (and that means heterosexual!) wedding at an early age. Such a teaching also provides comfort to the majority that "we're not them" and turns the debate from "should same-sex marriage be generally allowed" to "equality for the out-group." While this may make it possible to talk about same-sex marriage in our culture, it also reinforces not only the separation between heterosexual and homosexual but also brands homosexuality as abnormal to the extent it diverges from heterosexuality.

One serious consideration here is that if homosexuality is a cultural phenomenon, then it is a complex one without a single defined cause. Most people experience which box they are put in (homosexual vs heterosexual vs bisexual) as relatively immutable but it is not clear to what extent this immutability is a product of a system of social conditioning. It is also worth noting that the wall goes both ways, and so it can be a product of the conditioning of "be straight. you aren't gay, are you?" being sent as a cultural message over and over.

On the other hand, if homosexuality is biologically determined, then we can look forward to the day when a pharmaceutical company patents a prenatal therapy proven to eliminate what could essentially be seen as a birth defect.

Paradoxically, the idea that culture and cognitive matters play a strong role is likely to be the most scientific view. The American Psychological Association has a statement on their web site which states that sexual orientation is the result of a large number of factors including biology, cognitive factors, culture, and so forth.

My View on the Way Forward

I think that the best way forward is to recognize that banning same-sex marriage in the United States today serves no rational purpose and therefore should be removed either through the legislative or legal process. However, I do not think that cultural colonialism serves anyone very well, and legal equality does not necessarily mean social equality. Therefore I do not think it is our place to push other countries on this issue. Marriage means very different things to different cultures and only the arrogant believe their way is for everyone.

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Chris Travers (einhverfr)
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Same-sex marriage and gay marriage are terms for a legally or socially recognized marriage between two people of the same sex.

The first country to allow same-sex couples to enter into legally recognized marriage was the Netherlands, effective in 2001. Since then, six other countries and seven U.S. states have followed suit, though voters in California revoked it through passage of Proposition 8. Proponents of same-sex marriage regard it as a human right to be able to enter into marriage regardless of sexual orientation. Those who oppose same-sex marriage often base their opposition on the perceived societal impact of same-sex marriage, concerns about indirect consequences of same-sex marriage, parenting concerns, tradition, or religious grounds. In 16 countries, and specific jurisdictions within 5 others, same-sex couples can join in a civil union but cannot marry. Additionally, Israel, the U.S. state of New York and Washington, D.C. recognize legal same-sex marriages from other jurisdictions but do not perform their own. Political and legal debate continues in over two dozen other countries and multiple U.S. states.

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