Prof. Doug Kmiec had an article recently in the San Francisco Chronicle urging voters to approve an initiative that would undo the recent Marriage Cases. Ed Brayton responds well to some of Kmiec’s arguments, and I think he’s right, but I think there’s a few more points to be made.
Kmiec starts out by acknowledging that homosexuals “are within the humanity acknowledged to be created equal and worthy of respect in the Declaration of Independence, but that responsible reaffirmation of equality of citizenship does not deprive the community of making a necessary and reasoned distinction for its own survival.” As Brayton points out, humanity is not likely to suffer extinction or even much of a decrease in numbers as a result of the legalization of gay marriage—gays, after all, would not be more likely to have children if they were barred from marrying members of the same sex. It is implausible in the least to say that the “distinction” by which same sex couples are barred from marriage is one “reasoned” on the basis of humanity’s “survival.” The ban on same sex marriage is rooted not in the needs of reproducing the species, but in long standing disapproval of homosexual relationships, a disapproval based on moral arguments, not on arguments of necessity.
The Declaration, of course, was written from a perspective that certainly acknowledged different categories of human beings, categories based on their moral choices, particularly. It refers, for example, to the “merciless Indian savages,” distinguishing them from civilized people on the grounds that they make war on “all ages, sexes, and conditions”—i.e., that they are terrorists. This distinction is a “reasoned” one. But a distinction based on mere personal distaste for homosexual behavior would not be a reasoned one; it would be based on subjective repugnance.
But more significant is the Declaration’s emphasis on unity. What is so special about the Declaration is its emphasis on a common humanity—as opposed to an emphasis on nationality or appeals to tribalism, which would have been a lot easier and a lot more short-sighted of the framers. As Lincoln said, in the midst of a merely revolutionary moment, the authors of the Declaration went out of their way to appeal to the rights which are endowed upon all of us merely by virtue of our humanity. It is the fact that we are humans that entitles us to rights. That is why Jefferson went on to denounce slavery in a passage deleted from the final Declaration, in words that again appealed to the common humanity shared by white Anglo-Americans and black Africans: condemning the king for “keep[ing] open a market where MEN should be bought & sold,” and describing slavery as a “crimes committed against the liberties of one people.” Here and elsewhere, the Declaration appeals to those elements in us that we share with all mankind and that are the origin of our rights. And what are those elements? They are not the capacity to reproduce sexually—something shared by countless other creatures. The element that distinguishes us from other animals is our reason—or ability to think and to communicate ideas.* This is the source of our rights and our dignity according to the Declaration.
With that in mind, let us look at marriage. In Kmiec’s view, marriage is primarily about procreation. Another view—a view I hold to be more consistent with the worldview of the Declaration of Independence—is that marriage is about the union and conversation of souls. It is about shared values, ideas, memories, and identities. It is about mental and spiritual unity, and not about biology. This, indeed, is why marriage between infertile couples (like George and Martha Washington), or couples far beyond the age where they can have children, is not only accepted but applauded in the United States. This is why childlessness, while often regrettable, is hardly a veto on a marriage. This view of marriage is consonant with respecting individuals because of their common humanity. By contrast, seeing marriage as primarily centered around reproduction would validate marriages entered into only for that reason; marriages without mutual respect between the spouses. If we see marriage as primarily a mechanism for breeding, then love is largely superfluous. Yet would this not be the very barbarism of which Kmiec would disapprove? Indeed, if the “survival of humanity” should be the governing principle in matters of laws regarding sexuality, then why shouldn’t polygamy be encouraged? Or rape? Why should the law not require divorce for infertile couples? Or forbid prophylactics?
The legal structure that surrounds marriage has for centuries been based not on procreation primarily, but on the recognition that marriage is an institution based on shared considerations of values and advantages among couples capable of thinking for themselves. And that is not something limited to same-sex couples. Obviously childrearing is an important part marriage for many people, but it is not the essential component of it.
Kmiec goes on to write that the initiative should be passed because it “1) promotes the orderly continuation of the species; 2) avoids the uncertainties of single-gender effects on children (most parents readily recognize the distinctive contributions of male and female in child rearing); and 3) takes respectful account of the difficulties of accommodating religious freedom that arise subsequent to the legal acceptance of same-sex marriage.”
But single sex marriage does not “disorder” the continuation of the species in any way. Kmiec’s claim that “giving state approval to non-procreative marriage cannot be denied as a contributing cause to the decline of families with natural children” is truly astonishing. Of course it can be denied. Homosexuals are not going to participate in the reproduction of the species one way or the other—unless the state somehow forces them to do so. Should we force homosexuals to have children? That would remedy the depopulation Kmiec worries about. But, of course, it would violate the principles of the Declaration of Independence to which Kmiec has appealed.
If homosexuals are not going to participate one way or the other in the orderly continuation of the species, then banning them from getting married is no more likely to advance this purpose than banning rap music is to increase attendance at Mozart concerts. The people who do the former are no more or less likely to participate in the latter thanks to such a prohibition.
Nor would the prohibition “avoid the uncertainties,” whatever those might be, surrounding “single-gender effects on children.” Kmiec provides no evidence for his implication that children need both male and female role models, but let us assume it is true. Not only does California allow gay couples to adopt, but California allows widowers and single parents to raise children! If the state ought to interfere in family choices so as to ensure that children have male and female role models, should the state not also force widows and widowers to remarry if they have kids? Or force single parents to marry? Surely in California unwed motherhood is far more common than are gay parents. Yet Kmiec would prohibit gay marriage to ensure that children get exposure to both male and female role models—while allowing single mothers to raise little boys and single fathers to raise little girls.
Finally Kmiec’s religious freedom argument is baseless. No religious leader can be forced to perform a wedding for anyone, whether straight couples or gay couples. Religious leaders, in fact, are specifically exempted from the civil rights laws that might otherwise prohibit them from discriminating in this way. Moreover, look at what else this argument would prove. Could we not use the same argument to say that Presbyterians should not be allowed to marry? After all, there are Catholics who think Presbyterianism is wrong, and it would infringe on their religious freedom to recognize marriages between Presbyterians. Certainly it would violate their religious freedom to be forced to perform such weddings. But of course, they’re no more required to perform those weddings than religious leaders are to perform weddings between gay couples.
But the real core of Kmiec’s argument is here: “the acquisition of unnatural reproductive means…[is] a libertarian exercise that would threaten all hope of democratic equality.”
In the endless battle between freedom of choice (resulting in inequalties) and the state’s attempts to force us into equality by depriving us of the freedom of choice, different people take different sides. I take the former; Kmiec takes the latter. In his view, liberty should be restricted in order to promote “democratic equality”—i.e., the state should deprive homosexuals of their free choices, to advance “democratic” choices made by the state. Like Procrustes, Kmiec will cut and stretch us to fit his preconceived notions of the way society ought to work.
Suffice it to say that the Declaration of Independence made the opposite choice. In the view of the Declaration, it is not “democratic equality” that holds center stage, but liberty—a liberty in which we are all equally free to pursue happiness even when doing so will result in inequalities of condition. Kmiec, though appealing to the Declaration of Independence, has abandoned its principles in spirit and letter throughout his article, and shown the true nature of opposition to same-sex marriage: to make all people choose the way people like Doug Kmiec would prefer that they choose.
*--“And it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the like, and the association of living beings who have this sense makes a family and a state.”—Aristotle, Politics
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