Culture and What Courts Can't Do
By George F. Will
Sunday, November 30, 2003; Page B07
When Massachusetts'
highest court asserted that same-sex marriage is a right protected by
the state's constitution and entailed by recent U.S. Supreme Court
reasoning about the U.S. Constitution, the president vowed to "do what
is legally necessary to defend the sanctity of marriage." His vow
implied two empirical premises for which conclusive evidence is lacking.
One is that law can do what the culture -- immensely powerful and largely autonomous -- has undone.
The other is that the social goods and individual virtues
that marriage is supposed to buttress are best served by excluding
same-sex couples from the culture of marriage, lest that culture be
even more altered than it recently has been.
More than 40 percent of first marriages in the United
States end in divorce. Cohabitation by unmarried heterosexual couples
has risen rapidly, from 523,000 in 1970 to 4.9 million today.
Procreation outside of marriage, although the seedbed of millions of
individual tragedies and myriad social pathologies, has lost much of
its stigma now that 33 percent of births -- including about 60 percent
of births to women younger than 25 -- occur to unmarried mothers.
So the "sanctity" of American marriage is problematic.
The crucial question is: Because the public meaning of marriage -- the
reason there are laws about it -- is procreation and child rearing,
what would be the consequences of altering the public meaning of
marriage by including same-sex unions?
The rapid decline of a foundational social institution
such as marriage in the past four decades and the attendant rise of
social disorder usually correlate with some immense event, such as war.
But the decline of marriage -- and the rise of what are
no longer called illegitimate births -- has occurred during four
decades of mostly peace and prosperity.
Some reasons for this are unclear; others seem
impervious to legislative remedies. Therefore one cannot confidently
assert the consequences of expanding or preemptively restricting the
definition of marriage. But one near certainty is that establishing the
right to same-sex marriage by judicial fiat rather than democratic
persuasion will retard and perhaps reverse growing tolerance of
homosexuality.
Society has steadily accommodated widespread adoption
and child rearing by same-sex couples, the sympathetic portrayal of
homosexuality in popular culture and the extension of employment and
related benefits to same-sex couples (as one-third of Fortune 500
companies already do). But remember, until the Supreme Court ripped
abortion policy away from legislatures -- arenas of persuasion --
America was more or less amicably adjusting conflicting views: In the
five years before Roe v. Wade (1973), 16 states with 41 percent
of America's population liberalized abortion laws. After courts put
abortion policy -- as they may yet put marriage law -- largely beyond
political debate in the states, bitterness became constant.
Amending the Constitution to define marriage as between
a man and a woman would be unwise for two reasons. Constitutionalizing
social policy is generally a misuse of fundamental law. And it would be
especially imprudent to end state responsibility for marriage law at a
moment when we require evidence of the sort that can be generated by
allowing the states to be laboratories of social policy.
Opponents of same-sex marriages argue inter alia that such marriages will weaken marriage and injure society's interest in stable family units. Proponents argue inter alia
that giving same-sex couples the choice of marriage, with its
presumption of permanence expressed in a network of responsibilities
and privileges, will reform not only homosexual life but society as a
whole by strengthening the virtues that marriage is supposed to sustain.
Evidence is inadequate to confirm either proposition.
And no evidence suggests that either the Massachusetts court or the
U.S. Supreme Court realizes how far the logic of their recent rulings
goes. Taken together, the rulings point toward a constitutional right
to, among other things, polygamy.
Last June the U.S. Supreme Court, overturning Texas's
anti-sodomy laws, spoke of a need to respect "autonomy of the self . .
. [in] certain intimate conduct." The Massachusetts court, taking its
bearings from that ruling, cited "respect for individual autonomy"
-- emphasis added -- when defining marriage simply as "the exclusive
and permanent commitment of the married partners to one another."
The binary idea of marriage -- friends and foes of gay marriage agree it is an institution involving couples -- arose because there are two sexes. But if the meaning of marriage and the right to marital status is sufficiently
defined with reference to "autonomy of the self . . . [in] certain
intimate conduct," what principled, nonarbitrary ground is there for
denying the right of marriage to, say, a threesome whose members insist
that it is necessary for their self-fulfillment through intimacy?
georgewill@washpost.com
© 2003 The Washington Post Company
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