David Orgon Coolidge

David Orgon Coolidge is an American law professor. This is from a chapter of Homosexuality and American Public Life, edited by Christopher Wolfe (Spence, 1999).

The case for the current definition of marriage is a positive one. It is not based on overcoming arguments set forth by its opponents, but on the enduring reality of marriage itself.

1. Marriage is a unique, male-female sexual community with many public effects. For this reason, marriage deserves recognition, protection and benefits under the law.

First, the current marriage law, as we observed earlier, assumes that there are two sexes, male and female. Is this a reasonable assumption? Yes, although there are those who question it. It further assumes that the sexual organs of men and women are designed to go together, at least for reproductive purposes. Is this a reasonable assumption? Yes, although there are those who question this, too. Third, it assumes that the sexual union of male and female creates not only a reproductive unit, but a unique human community. Is this a reasonable assumption? Yes, although supporters of same sex marriage vigorously dispute this. Fourth, it assumes that this marital community makes an indispensable contribution to the wellbeing of the larger society, particularly by uniting and extending the generations. Is this a reasonable assumption? Yes, although supporters of same-sex marriage argue that there is nothing special about the procreation and nurture of children that requires a husband and wife. Finally, the law assumes that it is in society's interest to preserve, protect, and promote this marital community through its laws. Is this a reasonable assumption? Yes, if one grants the earlier assumptions. Not if one contests them.

To call the current law of marriage "irrational" or "discriminatory" because it does not include same-sex couples is really just to present one's argument for a different point of view. That is why the question of marriage belongs among the people and their elected representatives, rather than among a judicial elite. The ideas that men and women do not form a unique sexual community, that the procreation and nurture of children have no natural connection to one another, and that marriage makes no distinctive contribution to the larger social order, sound even more "irrational" to most Americans. In a culture where one person's rationality is another's prejudice, the idea that the current law of the entire world is "obviously irrational" is itself irrational. Compared to such views, the opinion that marriage is a distinctive form of human community is entirely sensible.

2. The law should continue to encourage men and women to enter into marital sexual relationships.

It has three tools at its disposal: it can promote, it can permit, and it can prohibit. The law promotes behavior by giving it endorsement, recognition, protections, and public benefits. Our current marriage laws do this with definitions, licensing, rights and responsibilities, and subsidies. The law also permits behaviors which it does not endorse, but does not criminalize. States which have repealed their adultery, sodomy, and fornication statutes, for instance, have not thereby given their endorsement to extramarital, homosexual, or premarital sex. They have merely decided that they will not devote government resources to enforcing penalties for these kinds of behavior. A state may accomplish the same result by leaving a law on the books, and using it only sparingly. Finally, the law also prohibits behaviors it judges to be not only immoral, but so unhealthy for society that it chooses to discourage them in advance, rather than leaving choice to the individual. In all states, this still includes, for example, prohibitions on incest, bigamy, and underage marriages, and many now ban marriage between same-sex partners.

If what same-sex couples want is privacy, it is available to them in most states, some formally (by leaving adult consensual sex unregulated) others informally (by not enforcing bans). The law also leaves many areas, for example in contracts, to the private judgement of individuals. Various issues relating to same-sex sexual (or non-sexual) relationships can be addressed this way. The law need not necessarily endorse or override a specific agreement between private parties.

But one can already hear the objections from the other side. By adopting a clear preference for marriage, and leaving other sexual relationships in the zone of "permission," the law is "doing violence." It is "marginalizing" sexual "outsiders," communicating to these persons that they are "worthless." Andrew Sullivan makes many of these claims. He claims that he "knows in his heart" that same-sex sexual relationships must be good. He believes that persons have a variety of "orientations," some heterosexual, some homosexual, and that the only prospect for a homosexual person to have a full and happy life is for her to enter into intimate, lasting sexual relationships with another person of the same sex." Therefore, as long as society withholds its full acceptance of these relationships, it will send a message to homosexuals that they are "incapable of real love, unworthy of real commitment, incompetent to achieve what every heterosexual in this country and indeed the world regards as the most important and satisfying and significant thing in their lives." Condemned to miserable and loveless lives, persons with same-sex desires will express their despair in destructive ways, according to Sullivan.

Others, including myself, disagree. We question the view that sexual desires are the key to identifying one's sexual identity. We question the view that "sexual orientation" is as significant as being male or female. In our view, many factors may contribute to same-sex sexual attraction. But at bottom, each person is meant to have healthy sexual relationships with members of the opposite sex, and healthy non-sexual relationships with members of the same sex. Since these are the kinds of relationships that are best for a person, other kinds should not be encouraged. To be sure, people get themselves into same-sex sexual relationships, like other kinds of non-marital sexual relationships. Like any such relationship, they may have long-term consequences that need to be legally addressed. But it is not in the best interest of these persons, or the community around them, for these relationships to be legally endorsed. To do so would only promote a movement that seeks full acceptance of "gay, lesbian, bisexual, and transgendered identity" and is willing to redefine marriage to get it.

Does this then mean, as Sullivan claims, that persons with this viewpoint, including myself, really do believe that homosexuals are "incapable of real love, unworthy of real commitment, incompetent to achieve what every heterosexual in this country and indeed the world regards as the most important and satisfying and significant thing in their lives"? Not at all. This could only be true if one accepts the assumptions that appear to lie behind Sullivan's claim.

For instance, it appears to assume that sexual love is necessary for "real" love or "real" commitment. But this is not true. Sexual love is only one of many forms of love. True love among family, friends, and associates in shared tasks does not require intercourse or orgasm, and I doubt that Sullivan would claim it does. Yet these are genuine forms of real and committed love.

Sullivan also appears to assume that any one who does not marry is missing what would be "the most important and satisfying and significant thing in their lives." But this is not true either. Marriage is no panacea for anyone's need for "satisfaction" or "significance - in fact it often requires sacrifices that force one to set aside those very needs. Again, I am sure that Sullivan knows this. Meanwhile, many unmarried persons live equally satisfying and significant lives, sustained by deep and lasting friendships.

Finally, Sullivan appears to assume that homosexuals are forever denied the desire or opportunity to enter into marriage, because they cannot marry their preferred same-sex partner. But this, too, is not true. Some persons with same-sex desires are able to discover genuine sexual desire for the opposite sex, develop relationships, and eventually enter male-female marriages. Any laws or policies which would make this less likely only end up harming those they claim to serve.

I do not believe that persons who struggle with same-sex desires are incapable of true love or real commitment. I believe that these persons are precious individuals, created in the image of God, who deserve respect as my neighbors and fellow-citizens. Here I am arguing, as one citizen to another, about what that respect requires.

An Example of Arguments in Action

Soon after the same-sex couples filed their recent lawsuit in Vermont, the Attorney General of Vermont filed a "Motion to Dismiss." After responding to some of the arguments we have already discussed, this well-crafted reply proceeded to offer seven reasons that Vermont's marriage law has, using the terms of legal jargon, a "rational basis".

1. "The State has an interest in promoting the institution of marriage in its current form because it unites men and women." Marriage, the Attorney General says, "is an institution which uniquely celebrates the complementarity of the sexes." Therefore, it "symbolizes to all society the value of bridging differences and working together," and it "instructs the young of the value of uniting male and female qualities and contributions in the same institution."

2. "The State has an interest in promoting child-rearing in a setting which provides both male and female role models." Since "marriages are built on male and female inclusion, they provide special advantages to raising children." This is because "Children see and experience the innate and unique abilities and characteristics that each sex possesses and contributes to their combined endeavor. Children, thus, learn lessons for later life by seeing both parents working together in child-rearing."

3. "The State has an interest in furthering the links between procreation and child-rearing." Vermont has seen a growth in single-parent households, and though many single parents do a good job, "they do not have all the benefits of families with two parents." Because same-sex couples cannot conceive a child on their own," the Legislature could reasonably conclude that "increased creation of children through technologically or third-party assisted reproduction" tends "to further separate the connection between procreation and parental responsibilities."

4. "The State has an interest in preserving marriage as an institution." Marriage is under attack today, and "the Legislature could conceivably have concluded that expanding marriage to include same-sex unions would destabilize the institution of marriage." If same-sex couples are allowed to marry, for instance, "the conception of marriage as a precursor to raising a family will thus be diminished. In its place will come marriage as a tax status, a means to obtain economic benefits." While one can debate whether this is better or worse, "the Legislature could rationally conclude that the change will make the institution weaker."

5. "The State has an interest in ensuring that its marriages are recognized in other states and in not expending resources to sort out conflict-of-law issues among its sister states." If Vermont is forced to marry same-sex couples, when these couples move to other states they are likely to file suit to attempt to gain recognition of the validity of their marriages. Not only may this impair the legality of those marriages, it will potentially drag the state into "expending scarce judicial and government attorney resources on deciding the myriad questions of whether certain marriages, divorces, or related family orders are valid."

6. "The State has an interest in using the law to make normative statements." "No matter how modern we may believe our society to be," the Attorney General says, "the law still has a role in reflecting and shaping value judgments." Vermont's laws embody these Judgments in various ways: by prohibiting bigamy, by criminalizing prostitution, by criminalizing sexual relations with individuals under age sixteen. Likewise, it may define marriage as the union of a man and a woman.

7. "The State has an interest in minimizing the use of surrogacy contracts and sperm donors to avoid, inter alia [among other things], increased child custody and visitation disputes." Because "Same-sex couples biologically require a third person's assistance or contribution to conceive a child," the state could conclude that the legalization of same-sex marriage "would lead to an increase in technologically assisted conception." Conception by means of sperm donors or gestational surrogates is controversial, and "the custody issues that can arise are significant, and the State has an interest in keeping the number of those disputes within reasonable bounds." The resulting impact "on the resources of the court system from increased litigation of this sort is obvious. The State has a rational justification for avoiding these issues by denying marriage to same-sex couples."

In summary, "'The numerous justifications for the present legislative scheme are not based upon out-moded views of men and women", according to the Attorney General. "Rather, they are grounded upon the rich physical and psychological differences between the sexes that exist to this very day." For this reason, Vermont (or any other state) may reasonably enact such a marriage law, and there are no "constitutional" grounds for declaring it "invidious" or "irrational."

These are not the only arguments that can be offered for the "rationality" of a state's marriage law, but legally speaking, they are among the most important. Depending on their own beliefs, judges will find all of them persuasive, or only some of them, or perhaps none of them. Even if we question whether judges should be debating these arguments at all, our duty is to make the best arguments we can. We cannot control the outcome, we can only respond as it occurs.

Conclusion

Our newspapers, airwaves, and civic arenas are filled with claims and counter-claims about family, equality, and the needs of children. The static level is rising, and we may be headed for a showdown before the next millennium begins.

Culturally and intellectually, the question of marriage goes as deep as any question can. It engages our deepest convictions about life, love, and law. It stretches our minds and hearts.

Legally, the contest over same-sex marriage is a classic example of the conflict between two understandings of the relationship between the people and the courts. The one side considers itself the defender of civil rights. It sees a constitution as a charter of individual rights, views the people as a dangerous majority, and believes that courts should interpret a constitution in a way that advances individual rights over against the social and legal institutions adopted and enacted by the people and their elected representatives. It views the courts as the preferred forum for social reform, because they are seen as less political.

The other side considers itself the defender of civil society. It sees the constitution as a charter of political self-government and believes that the courts should interpret the constitution in a way that respects the people's social and legal institutions, unless they openly contradict the meaning of the constitution. It views the legislative branch as a better forum for social reform, because it is more political.

These debates will continue. Neither side is going away. Whoever is "victor" at any given time will still have to contend with the "vanquished." People will continue to live their very imperfect lives, seeking some balance between justice and compassion, between truth and liberty.

In the meantime, if one believes that a good society requires a critical mass of healthy male-female marriages with children, then any policies that redefine, and thereby weaken, that basic unit are a bad idea. I believe that same-sex marriage is a bad idea, not because same-sex couples are bad people, but because same-sex marriage is not marriage. A genuinely pluralistic society must do justice to individuals. But it must also do justice to marriage.

How we ultimately answer the question of marriage will depend on the quality of our citizenship. However the contest turns out, the effects will be felt for generations to come.