The Magazine

Latter Day Federalists

Why we need a national definition of marriage.

Mar 29, 2004, Vol. 9, No. 28 • By MAGGIE GALLAGHER
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I HEARD IT ON FEBRUARY 27, 2004, for the very first time: an argument on a major media outlet for polygamy. "It doesn't really matter to me who marries who," said attorney Ron Kuby on ABC 770 talk radio. "You can't deny millions of people rights because you are afraid other people might demand their rights too."

The good news is, the latest polls show 92 percent of Americans oppose polygamy. The bad news is, the pollsters are asking the question.

In San Francisco, Nyack, Portland, Asbury Park, Seattle, and New Paltz, mayors are claiming a unilateral right to redefine marriage. Jason West, the 26-year-old mayor of New Paltz, says he has a "moral obligation" to marry same-sex couples. "We as a society have no right to discriminate in marriage," he declares.

The very ideas that are being used to promote single-sex marriage are a dagger pointed at the heart of the marriage culture. Marriage, these people are saying, is not a public, social norm, it is an individual civil right, a benefit-dispensing mechanism. Every small town or county can decide for itself what marriage means, with no damage to anything important in our common culture.

The fragmenting of America's marriage culture is going on before our eyes, even as the most stubbornly blind advocates of single-sex marriage continue to insist gay marriage poses no threat. As Bob Herbert wrote in the New York Times, "Those of you who are already married, tell the truth: [Gay marriage] won't make your marriage any weaker, will it?"

On March 3, 2004, the same day that Yale law school's Lea Brilmayer testified before the U.S. Senate that states would never be required to recognize marriages performed in other jurisdictions, New York attorney general Eliot Spitzer issued a legal opinion exactly to the contrary: that New York law "presumptively requires" recognizing same-sex marriages and civil unions performed elsewhere. The California attorney general declined to defend the constitutionality of a state law defining marriage as the union of a man and a woman, merely referring the matter to the court for an opinion. On March 7, the mayor of Seattle announced that his city would begin recognizing same-sex marriages performed elsewhere, even though Washington is one of 38 states with a defense-of-marriage law defining marriage as the union of a man and a woman. State defense-of-marriage laws are already being invalidated by public officials confident the courts will approve.

How long is it before some Islamic leader gets the message that America is not serious about enforcing its marriage norms? If marriage is an individual civil right, it cannot be a social norm. A norm guides and shapes individual behavior, to produce a common good. An individual right is a license for each individual to decide for himself what good to seek. How can an individual right to marriage exclude Muslims who want more than one wife? Or bisexual women who would like to share a husband?

What will happen if we fail to affirm a national definition of marriage? Sex, love, and intimacy are private things. Marriage is a public act. A person who marries undergoes a change in status that others must acknowledge. That's why the advocates of single-sex marriage won't settle for civil unions. They hope and intend for their vision of marriage to become the new norm. If the marriages of same-sex couples are to be publicly acknowledged as the full equivalent of marriages uniting husband and wife, everyone's ideas about marriage will have to change.

THIS IS A GOOD THING, say the same-sex-marriage advocates, who take great comfort from the analogy to interracial marriage. In 1967, when the Supreme Court unanimously overturned laws barring miscegenation in Loving v. Virginia, a majority of Americans supported those laws. A decade later, under the tutelage of the courts, public opinion had changed dramatically. Advocates believe the same thing will happen with same-sex marriage. After a period of initial opposition, a reeducated public will come to embrace this new vision of marriage.

But laws against interracial marriage had no deep roots in religious thought. More important, they had nothing to do with the public purposes of marriage. They were about racism, not marriage. They were about keeping the races separate so that one race could oppress the other. By contrast, the great, cross-cultural and historic idea of marriage--the bringing together of a man and a woman, in the hope that they might raise the next generation together, and in the secure knowledge that every such couple can give any children they create or adopt a mother and a father--is as old as humanity itself.