In the US, 17 states license same-sex marriage. I’m comfortable with that. The remainder, 33 states, do not license same-sex marriage, and I’m comfortable with that too. What I am not comfortable with is how 5 of those 17 states came to license same-sex marriage. Judges decided that it must be so – the citizens of those states were not consulted. I’m anxious too that the citizens of the 33 states that do not license same-sex marriage will see their laws overturned undemocratically.
I appreciate that the interpretation of the US constitution by the Supreme Court is a difficult process and that the adjudications it makes are bound to be controversial. But let’s be honest: the US constitution does not in any way provide a right to same-sex marriage that can be appealed to over the heads of legislators and voters. My view of the constitution, originalism, is that one should stick with the intentions of the authors. A constitution, like a will, should not be misinterpreted to suit ones agenda, however noble it may be. Sadly, judicial activism in the context of same-sex marriage entails precisely such a disregard, and is a magicking up of principles. If one does not like the intentions of the authors, then one should campaign for an amendment to the constitution. The framers of the 13th amendment, which abolished slavery, correctly recognised that the existing constitution did not have a single word against slavery. Proceeding without artifice or judicial sleight of hand, they amended the constitution. They did not try to pretend that the constitution contained principles suited to their wishes. We should not make a charade of the constitution by turning it into the repository of nostrums for every social problem, or by pretending that its authors had any truck with same-sex marriage. That is why I am saddened that the democratically made anti-same-sex marriage laws of Oklahoma, Utah, Texas and Virginia are awaiting the pronouncements of the courts.
Questions of such fundamental significance, questions which are essentially moral rather than legal, must not be left to unelected experts. They must be answered democratically, preferably through referenda. Such referenda should take place at a level of government that is appropriate in that the result does not unnecessarily foist same-sex marriage on conservative societies, nor prevent liberal societies from allowing it. It is perfectly reasonable that a society as diverse as America, and states as different as Mississippi and Massachusetts should reflect their differing moral convictions with differing laws. Deciding the matter at a federal level would mean overruling either the wishes of liberal states or –as is the political prospect - of conservative states. In the UK this respect for differing moral perspectives means that same-sex marriage should not be forced upon more conservative parts of the union, like Northern Ireland. By constitutional accident more than by design this is what has in fact happened, as last year’s legislation of the British parliament legalising same-sex marriage only applied to England and Wales. One should note also that a judicial or federal imposition of same-sex marriage on conservative states would likely have the immensely unwelcome effect of throwing fuel on the fire of the culture wars, and distracting another generation of Americans from matters of actual significance, like economic inequality.
Whatever decisions are reached regarding same-sex marriage, it is right that the decisions be collective ones – that is, ones made by a community through its government. It is commonly said that marriage is a purely private matter, a contract between two people, and that therefore any person should be allowed to marry any other person, as their inclinations and consciences dictate. This is wrong. Marriage is a social institution, and an institution supported by the state. Marriage is a public acknowledgement of, an affirmation of, and a celebration of, a sexual relationship. Because of this, the question of which kinds of persons are to be allowed to marry which other kinds of persons is a question that can only be answered collectively.
In the early days of the gay rights movement their main claim was simply for the legal and social toleration of homosexuality. This has changed. Now the gay rights movements want same-sex relationships to be acknowledged by all as morally equal and to be celebrated by all through the dignity and respect of the institution of marriage. This is a natural desire for recognition, no doubt, but it goes beyond the limits of what we can be legitimately demanded as a right from others in a free society. If a Muslim or a Mormon fundamentalist wants to maintain a polygamous household, we at most barely tolerate this arrangement. The polygamists cannot demand our recognition as a right. We do not, through the law, acknowledge polygamy’s rectitude and grant it the moral status of monogamous marriage. Since many conservative states and societies cannot be said to broadly approve of same-sex relationships, it would be unjust for such recognition to be forced on such societies through the imposition of same-sex marriage. Moreover, the attempt to force such a recognition will be obviously be unsuccessful – to a conservative Christian the elevation of homosexual relationships into the institution of marriage does not sanctify them, rather it devalues the institution of marriage. This is a point that most proponents of same-sex marriage refuse to acknowledge.
Many people argue that homosexuals have an innate right to marriage, and that therefore the democratically expressed collective wishes of the rest of society are irrelevant, and that the judges are right to appear on the scene as the moral knights. This is untrue. One need not be a thoroughgoing postmodernist or a cultural relativist to believe that many of our institutions are socially constructed, and that many of these socially constructed differences are morally neutral. We have our pubs, the Arabs have their shisha-dens, the French have their main meal in the evening and the Germans have theirs at midday. None of these ways of life is morally better than the other. In some societies marriage is conceived of as a life-long commitment, for others it is acknowledged to be more temporary. For some it may be rigorously monogamous, whilst other societies endorse polygamy or open marriages. For some the gender roles of the marital pair are well defined, in others tasks are shared on an ad hoc basis. The point I am drawing out is that there is no fixed-idea of what marriage must be that gay rights activists can appeal to. Of course it is true that they can create a right by asserting it with enough volume and enthusiasm – which is how rights are usually made – but it is basic intellectual dishonesty to appeal to a pre-existing universal right in the course of this process. This isn’t to assert that all social arrangements are morally equal. But I do suggest that the two options before us, of understanding marriage as the union of a man and a woman, or as the union of two adults, are on the same moral plane: the former is not in any sense immoral or deficient.
With all of this said, I must state that I myself am in favour of the legalisation of same-sex marriage. The question of the rightness or wrongness of homosexuality, which is what in most people’s minds forms the nub of contention in this matter, is, I believe, not determinative of whether same-sex marriage should be permitted. We are lucky that this is the case, since on both sides there is a total lack of serious moral argument – on the anti-homosexuality side we have some of the demiurge Jehovah’s outbursts, and on the pro-homosexuality side we have the expression ‘que, sera, sera’. Rather, we should recognise that – welcome or unwelcome – homosexuality is here to stay. We should ask ourselves this: whether gay people will flourish more as human beings if the institution of marriage is denied to them, or is allowed to them? In my opinion, the latter is clearly the case. In the 1970s many gay rights activists spoke about the need to destroy the institution of marriage and live freely or communally. Now all they want is to marry and have children. That desire is something to be welcomed and nurtured, because the life of the family – even of a strange and unfamiliar type – is generally an enriching one, and a site of human flourishing. Bearing this in mind, I would argue that even the hardest conservatives should support same-sex marriage.
I wish only that the spread of same-sex marriage to come about through the ballot box, in a way that respects the rights of societies to determine themselves, and in a way that respects the collective and social nature of marriage. It must come about through persuasion and reasonable discourse, not through bludgeoning one’s opponents with a judge’s gavel.
By Marcus Hunt