This week, a verdict was delivered in the federal case on the constitutionality of California’s Proposition 8, the 2008 referendum that defined marriage in that state as exclusively between a man and woman. Ninth Circuit District Court Chief Judge Vaughn Walker came down on the side of legalization of same-sex marriage, declaring that marriage is a basic right and that Proposition 8 denies equal-protection and due-process guarantees for gay men and women.
The court’s decision was more than six months in coming; but it is no surprise. The proceedings, according to newspaper reports, were marred by failure on the part of the defense to establish any truly compelling evidence for denying marriage to homosexual couples.
As a long time student of family issues, I watched this court case with interest. Most particularly, I noted the public lambasting that followed testimony by the star witness for the defense, David Blankenhorn. Mr. Blankenhorn is a former colleague of mine; several years ago we co-edited an anthology on the subject of marriage.
In court, counsel for the plaintiffs (echoed later by a number of prominent journalists and political commentators) charged that in more than seven hours of questioning last January, Mr. Blankenhorn failed to acquit himself as anything approaching an expert on the subject of gay marriage. They noted that during the course of his testimony, Mr. Blankenhorn admitted that he had neither performed nor read any data-based studies on the success or failure of same-sex unions in the jurisdictions where they are legal.
In fact, Mr. Blakenhorn set forth his principal arguments against gay marriage as derived from a long career of studying the state of contemporary heterosexual marriage. The arguments were as follows: Gay marriage, he said, would “accelerate the de-institutionalization of marriage” and weaken family life by “mainstreaming alternative family forms.” Marriage, he further observed, was throughout history a child-centered social institution—a bond between a man and a woman forged primarily in the interest of procreation and child rearing. Legalizing same-sex marriage, he said, would intensify the current trend to center marriage on adult gratification rather than on the needs of children.
During his testimony, Mr. Blankenhorn noted that granting gay men and women the right to marry would be a gesture quintessentially in the American spirit of equality. Nevertheless, it was a gesture from which he urged the court to demur for the simple reason that two men or two women could not conceive a child together, and that “a child needs a mother and a father.”
To be fair to Mr. Blankenhorn, though he is no expert on same-sex unions, there is a great deal of social-science evidence connecting marriage and the active engagement of two biological parents with child well-being. And there is simply no other way to view the age-old, universal institution of marriage than as rooted in the biological family.
Marriage, like all cultural institutions, evolves; and it may look very different in different cultures. But the institution’s common denominator across time and cultures has been its dedication to the offices of reproduction. The great 20th century cultural anthropologist Bronislaw Malinowsky stated that while marriage is as old as human life, it has never been primarily a romantic, or even an economic, bond. It has been principally an arrangement for bearing children.
Over the course of the 20th century, the institution of marriage endured precipitous change. In fact, there remain in Western nations today only very tenuous connections between marriage and parenthood, as we once understood those connections. Thirty-eight percent of American children are now born out of wedlock. A recent Pew analysis of 2008 census data showed that only just over 40% of Americans consider children fundamental to marriage.
The once-critical relationship between sexuality and parenthood also is quickly becoming irrelevant. The explosion of reproductive technologies make it possible for men and women to reproduce regardless of sexual orientation. Finally, gender roles have become so fluid that they strain court decisions on family matters. The courts can no longer rely, as guidelines in family cases, on the once deterministic roles of “husband,” “wife,” “mother” and “father.”
Hardly a wonder, then, that in the Proposition 8 case, the counsel for the plaintiffs, David Boies, argued that marriage is no longer an institution but, rather, a private contract. And as if affirming Mr. Boies’s statements, Judge Walker challenged defense attorney Charles Cooper with searching questions during closing arguments: “Do people get married for the benefit of the community? Why couldn’t the state start saying marriage is entirely a matter of private conduct?”
Such inquiries beg the underlying question as to why same-sex couples would want to take part in such a deconstructed, even quaint social arrangement as marriage. If marriage today is little more than a declaration of emotional commitment with tax and inheritance benefits, why not settle for the alternative of civil union—which ideally would grant the same legal and economic privileges to domestic partnerships as marriage does, and without the messy burden of history?
Fact is, the gay-marriage movement derives less of its animus from the material benefits society at large accords marriage than from the social and cultural dignities granted it by its long history. In lobbying for marriage, gay men and women clearly care much less about legal advantages than they do about weddings, rings, and the spiritual trappings of married life.
They care about marriage precisely because in a culture searching for meaningful symbols, marriage is the veritable symbol of culture. Jonathan Rauch, a leader in the gay-marriage movement, puts it succinctly enough: Gay people want to marry because “marriage is the foundation of civilization.”
For those same-sex couples in California and elsewhere who are striving for deeper affirmation of their sexual partnerships, Judge Walker’s decision —while hardly the final judicial word on the subject—is balm. Gay couples have moved closer to sewing lives in patterns borrowed from their own birth families’ cultural histories and traditions. The question, however, is whether giving them license to piece together remnants of so decayed an institution as marriage will not aggravate all the more the fraying of its fabric.
Ms. Mack is author of “The Assault on Parenthood” (Simon & Schuster; Encounter Paperbacks,) and co-editor of “The Book of Marriage: The Wisest Answers to the Toughest Questions” (Eerdmans)