Dr Adrian Pabst, Senior Lecturer in Politics, School of Politics and IR, University of Kent; Visiting Professor, Institut d'Etudes Politiques de Lille (Sciences Po), specially for wpfdc.org
About a dozen countries across the West are currently legislating in favour of gay marriage. Following months of mass mobilisation and parliamentary acrimony, the French National Assembly adopted the new law on ‘marriage for all’ on 23 April.
In the UK, the “Same-Sex Couples Bill” received its first reading on 24 January and – following a second reading – was approved by the lower chamber of parliament on 5 February in a 400-175 vote. It will probably become law sometime in June after its third reading in the House of Commons and its passage through the House of Lords.
On Monday Minnesota became the 12th US federal state to legalise gay marriage, which has already been approved in Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, Vermont and Washington as well as the District of Columbia. Various provisions of the 1996 Defense of Marriage Act, which defines marriage in federal law as a union between one man and one woman, have been judged to be unconstitutional and are currently under review by the US Supreme Court.
The case for gay marriage is untenable not just on the terms put forward by its advocates but also on more general terms that relate to politics, society, culture and human nature. On its own terms, gay marriage is questionable because it does not so much deliver genuine equality as impose strict sameness and thereby fails to respect the diversity of different kinds of relationships.
In relation to politics, ‘modernising’ marriage is part of the secular state’s ‘biopolitical’ power that redefines human nature and social life itself – including the importance of the sexual difference between man and woman, the centrality of children and the organic links between the past, the present and the future (i.e. the dead, the living and the as yet unborn).
First I will focus on the key legal and constitutional-political objections against the proposed legislation. I will then consider key social and cultural reasons for opposing gay marriage.
There are a series of legal objections to the proposed gay marriage legislation and to the principle of same-sex matrimony. First of all, what constitutes consummation of a homosexual relationship? Since such relationships have no procreative purpose or outcome, consummation does not apply. Second, related to this is the question of how to define adultery in relation to homosexual couples. If sexual acts are no longer part of defining marriage, then adultery does not apply either. Thus, neither non-consummation nor adultery will be valid grounds for divorce. Since absolute equality is the overriding raison d’être for gay marriage, its application means that heterosexual couples will be able to claim equal treatment and demand that their marriage be exempt from these two elements too. This matter will lead to protracted litigation – in the case of Europe all the way to the European Court on Human Rights.
Third, connected with non-consummation and adultery is the absurd attempt to remove sex and procreation from the definition of marriage altogether. This serves to entrench the notion that matrimony is little more than a contractual arrangement between two consenting adults – a provisional, private choice rather than a vow of permanence to a shared life that has a public dimension because the sexual difference of man and women and their procreative act helps ensure the survival of society. Legally, this is not so much a belated recognition of certain long-standing trends as an public encouragement to privilege contractual transactions, subjective will and a focus on the present over above a union of two persons, a commitment to the well-being of children and a concern with both the past and the future.
Moreover, to eliminate sex and procreation from the legal conception of matrimony is to undermine legal prohibitions and social taboos in relation to bigamous marriage. Once matrimony is merely seen as a contract of cohabitation, then it is not clear on what grounds bigamy would be forbidden and punished. (Incest will increasingly be seen as wrong in terms of health risks, but if over time those risks can be managed, then there does not seem to be any overriding reason not to permit it).
Nor are there any compelling legal reasons to prevent a further extension of marriage to include cohabitating siblings or heterosexual bachelors who want to marry one another in order to avoid inheritance tax, for example. Once again, the new legislation opens the door for litigation that will absorb enormous political attention and economic resources while unwittingly undermining the social and cultural fabric of society.
Other legal problems relate to conscientious objection and the treatment of opponents to the new legislation who work in the public sector. If and when gay marriage does become law, all public sector workers such as teachers or religious charities will have to apply it. Opposition to it will be a form of discrimination against sexual orientation that is punishable: those who object on the basis of their conscience will be liable to arrest, prosecution, a criminal conviction, fines or even imprisonment. Teachers could be forced to instruct school children about gay marriage, and religious charities (e.g. a Christian, Jewish or Muslim marriage guidance bureau) will be vulnerable to a legal crackdown in case of non-compliance with the new law.
In short, the legal doctrine of absolute equality overrides the principle of freedom of conscience. Far from being concerned with marriage, those who have decided to legislate privilege the interests of one minority over those of the majority or at the very least – if religious belief and affiliation are concerned – a considerably larger minority.
Of even greater importance is the dubious constitutional-political process by which gay marriage is becoming law. Whether in France, the UK or the United States, the executive branch of government has ignored the will of the people and rammed through legislation without proper consultation. In France, for example, the law on “marriage for all” led to one of the largest popular mobilisations in the country’s post-war history, with more than a million opponents in the streets across the land.
In the UK, the Conservative-Liberal coalition government chose the gay lobby group Stonewall as a partner for educational projects (such as the Lesbian and Gay History Month) and rightly included in the “Same-Sex Couples Bill” the 60,000 signatures that Stonewall had gathered in favour of same-sex marriage as an expression of the will of 60,000 individuals. But the same government treated the petition by the Coalition for Marriage that attracted 650,000 signatures as the single voice of one group among many in society, as Charles Moore has recently reported in The Telegraph.
Thus, governments are ignoring the will of many citizens – if not a majority – to legislate in favour of minorities who as a whole do not consider gay marriage to be a priority for them or the rest of the country. The trouble is that the doctrine of absolute equality not only overrides the principle of freedom but also lacks a genuine democratic mandate, as virtually no political party included gay marriage in their election manifesto or the legislative programme. In this manner, we are seeing a complicit collusion of the will of the executive and the will of a small, vocal group – both of whom represent little more than themselves, their views and their own interests. In short, the new legislation lacks a democratic mandate, proper popular consultation and strict parliamentary scrutiny.
More fundamentally, this process raises profound questions about the legitimacy of the modern State to legislate hurriedly on a matter of supreme societal significance. On what grounds can the State arrogate to itself the sole right to redefine an institution that precedes both the State and the Church? Indeed, marriage as we understand in Europe and the rest of the West goes back to Antiquity, notably the Greek notion of gamos (hence the term monogamy) and the Roman concept of matrimonium (hence the term matrimony), as Roger Scruton has argued. Both traditions view marriage as a free, lifelong union of man and wife with at its core motherhood, children and the flourishing of the household that constitutes the foundation of society.
Crucially, anthropologists have shown that over time and across space, marriage has enjoyed in different cultures and societies a distinct social aura – a rite of passage that is of equal concern to the couple and the community. In the words of Scruton, “marriage is an enduring partnership between one man and one woman; it is founded in love between the partners and love for the children of their union; it is not a contract for services but an existential choice – a change from one mode of being to another”.
Historically, Roman civil marriage became Christianised and from early medieval times onwards was seen as one of the holy sacraments. But until the French Revolution neither the State nor the Church claimed a monopoly over the institution of marriage. Rather, marriage – like baptism and the last rites of burial – was viewed as a universal human institution with a more civil, secular dimension and a more sacramental, religions dimension. In line with the absolutist power of the secular State, governments today act as if they were the sole brokers and undoers of marriage.
It is true that the UK government has put in place what it calls a ‘quadruple’ lock to stop people from demanding to celebrate gay marriages in churches and other religious institutions that have opted out. But it is not clear at all whether this lock will hold up in the face of the Equality doctrine and its armada of human rights lawyers who will test it to destruction before national and supranational courts.
The problem is the ‘bio-political power’ of the modern secular State and its monopoly claim to redefine the institution of marriage. Arguably, this is part of a wider worrying tendencies towards a post-humanist phase of history in which governments constantly redefine the nature of human life and social existence – in relation to beginning-, middle- and end-of-life issues such as conception, birth, marriage, education and death. The liberalisation of abortion and euthanasia is but the start of a whole attack on the dignity of the person and the sanctity of all life (human and as well as animal).
With adoption already available to same-sex and transgender couples, the next targets include human reproduction and genetic manipulation across the board. This, coupled with the rise of robot technology for both civilian and military purposes, suggests that progress has been divorced from serving human ends and that humans will be the slaves of an increasingly independent system wherein science rules humanity and high-tech devices constitute a new species.
Traditionally marriage marks a rite of passage from one status to another which commands social recognition – a union of man and woman who form a new family and household whose offspring become members of society with the task of social reproduction when in turn they reach adulthood and get married. However, the benefit for society comes at a loss for the individuals involved – namely the loss of personal freedom linked to the new imperative of sexual fidelity and the responsibility for educating and socialising the children.
To the extent that contemporary culture and the law are eroding the sources for this commitment, the gain in freedom for individuals in one generation is the loss for society in the next generation – as children born outside wedlock tend to lack socialisation, are more introvert and less able to form permanent personal bonds than children born within a marriage. As such, marriage is much more than a private choice to cohabit or a contract to cooperate. Instead, it marks both a socially endorsed inter-personal union whose holistic ‘total’ is greater than the sum of its ‘parts’.
Scruton puts this well: “Having assumed the right to solemnise marriages and to endow them with legal status, the State must then follow the desires and inclinations of its current citizens, and redefine the institution accordingly [… Gay marriage] assumes that an institution in which absent generations are essentially involved, can be endlessly amended for the sake of the living, and without reference to the unborn and the dead”.
Thus, marriage is a good that exceeds private profit and offers social benefits. That is why in the past the State has upheld the matrimonial ideal – precisely because it is a relational good which individuals can only enjoy together and which they offer to society as a gift, especially motherhood and children.
In addition to motherhood, the other main gift of marriage is the celebration of sexual difference, on which not just interpersonal relationship but also whole cultures rest (including the arts, literature, fashion, etc.). Indeed, the matrimonial rite of passage marks the coming together, which – in the words of Scruton – is “an existential leap, rather than a passing experiment. Sexual attraction was shaped by this, and even if the shaping was – at some deep level – a cultural and not a human universal, it made desire into a kind of tribute paid to the other sex. Marriage has grown around the idea of sexual difference and all that sexual difference means. To make this feature accidental rather than essential is to change marriage beyond recognition. Gays want marriage because they want the social endorsement that it signifies; but by admitting gay marriage we deprive marriage of its social meaning. It ceases to be what it has been hitherto, namely a union of the sexes, and a blessing conferred by the unborn on the living. The pressure for gay marriage is therefore in a certain measure self-defeating […]”.
In other words, gay marriage strips matrimony of its ontological dimension, i.e. the fact that men and women have distinct beings which are nonetheless equal – just not the same. At the heart of the problem lies a conflation of equality with sameness and fair, equal treatment with exchangeability. Men and women are now seen to be exchangeable, whether in terms of professions, social roles or styles of dress and conduct that increasingly erase any distinction between masculinity and femininity. That is why the traditional dramatisation of the different sexes has been supplanted by the androgynous uniformity of metrosexual culture that is variously more homosexual or more heterosexual.
What’s in a name?
Perhaps the strongest argument in favour of same-sex marriage is that it eliminates any residual sense of discrimination which could arise from using different names. Linked to this is the social stigma attached to other notions such as ‘civil partnerships’ or ‘gay union’, which – so the argument goes – will never be seen on the same level as ‘marriage’. In short, those who argue for gay marriage want to extend to same-sex couples the social endorsement that matrimony signifies. As I have already indicated, the rationale behind extending marriage to same-sex couples is to promote equality and to make an institution open to all irrespective of their sexual orientation. But once again, this case looks untenable precisely because marriage has been drained of its distinct meaning and the new law now abolishes the particular social recognition afforded to ‘traditional marriage’.
New legislation to introduce gay marriage has the effect of abolishing heterosexual union and remodelling marriage on purely homosexual terms (non-consummation and adultery will no longer be valid grounds for divorce). Linked to this the absurd attempt to remove sex and procreation from the definition of marriage and thereby to reduce it to a purely contractual arrangement between two consenting adults who agree temporarily to cohabit – a provisional, private choice rather than a vow of permanence to a shared life that has a public dimension because having children helps ensure the future of society.
Thus, gay marriage does not so much promote equality as impose sameness that undermines diversity. Fighting homophobia and ensuring the legal equality for homosexuals needs to be balanced with preserving different kinds of relationships and upholding the single most important social structure ever known to humankind – the very foundation of society and the best guarantee for the survival of humanity, as I will suggest in one of my future essays.