More Than A Legal Institution

For those of you who haven't heard the good news: Connecticut's Supreme Court overturned a legislative ban on same-sex marriage, becoming the third state in the union to rule the legal distinction unconstitutional.

As in California, Connecticut's legislature had previously enacted a law establishing civil unions that were, in theory, legally identical to heterosexual marriages. The majority decision reminded legislators that marriage is not simply a legal institution - it is a social and cultural institution, and "carries with it a status and significance that the newly created classification of civil unions does not embody."

This is a strong argument, a perceptive criticism of why "separate but equal" does not work. It's so perceptive, in fact, that it's a shame it misses the point.

Marriage is, indeed, a social and cultural institution as much as a legal one - more, in fact. It does indeed carry with it a status and significance not embodied by civil unions - and without which civil unions will never have true social legitimacy. The problem, however, is that nobody agrees on what that significance is.

The dissenting opinion of Justice Zarella is illustrative of this point. He agreed with the state's attorney, who argued (to quote the New York Times) that "the plaintiffs had no case because they were free to marry, just not someone of the same sex." He further asserted that the purpose of state marriage laws was to cement a procreative union, which gay marriages (unarguably) are not. "The ancient definition of marriage as the union of one man and one woman has its basis as biology, not bigotry," he concludes.

Contrast this with the language used to describe marriage by New York Governor David Paterson, who praised the court's decision: "Marriage equality is not about challenging anyone’s personal values. It is about giving committed couples the basic rights that heterosexual couples have enjoyed for centuries, and official recognition of their commitment."

So what is marriage, then? Is it a procreative union, a social unit, or an 'official recognition of commitment'? Conservatives tend to take one or both of the first two interpretations; liberals tend to take the latter. Who's right?

Is it even possible to be right about something like this?

If the question is, who can make the argument from history and precedents, the conservatives have it locked up. The concept of marriage as a formal recognition of commitment is pretty much brand new; love matches were considered dangerous and irresponsible for most of recorded history. Certainly you should love your partner, although whether that love would precede or follow after the wedding was open for debate; you would never get married because of love, however. To do so risked destabilizing the social order.

The most telling point here, in fact, comes from the historical societies most accepting of homosexual intercourse: Ancient Greece and Rome. Both cultures saw recreational sex with more or less anything as a-ok; neither Greek nor Latin, to my knowledge, has an actual word describing a specifically homosexual individual. They both have words translating to something like "dominant" and "passive," which describe whether you preferred to be the top or the bottom; who was in the other position, however, was considered largely irrelevant. Heterosexual and homosexual intercourse were considered two flavors of the same food, so to speak.

Marriage, however, was unquestionably a social institution, designed to signify a woman's departure from one family and her membership in another. This distinction was important, of course, because the patriarchal family was the basic legal unit; in Rome, for example, your paterfamilias was considered to have total control over your life and possessions. Roman law recognized two types of marriages, but they had nothing to do with sexuality: one meant a woman remained under her father's control, and the other meant a woman passed under her husband's control. In the former arrangement, her children would stand to inherit nothing from their father; the disposition of family property was the main concern in a Roman marriage.

The point, you ask? Well, the point is that when Justice Zarella talks about "the ancient definition of marriage as the union of one man and one woman," he's got it right. That really is the ancient definition, sad to say. Not only that, but many modern families handle marriage almost exactly the same way the Romans did: in traditional Italian households, for example, a father must not intervene if his daughter is beaten by her husband. She's joined a new family, and is no longer any of his concern.

To liberals, of course, society has changed to the point where the patriarchal family is no longer the basic social unit. We see nothing wrong with an unmarried individual; we see nothing wrong with a childless couple; we deny that Woman plus Man is the only formula for a stable childhood home. Times have changed; children can happen out of wedlock; individuals can marry late, or not at all. The world is different; society is different. Welcome to progress.

The question, I suppose, is this: can we really pass useful legislation about such a culturally loaded concept? Can our laws really define marriage when we can't define it ourselves?

The solution is obvious, if unorthodox: eliminate marriage as a civil institution. It is too controversial, too cumbersome, too hotly contested for the government to handle. We have to do away with it.

A civil union essentially provides (or should provide) family benefits to individuals with whom one has chosen to form a family. It is not the place of a democratic government to decide how one should choose those individuals; it is not the place of a democratic government to decide how society should be ordered.

Leave marriage out of it. Leave the past behind. Leave the choice to us.