Over at Volokh, Maggie Gallagher is visiting for a bit and arguing against the legalization of same-sex marriage. At least, soon she will begin arguing against it. Right now, she is clearing some ground to prepare for her main case. It looks like she wants to make some broad sociological generalizations about the place of the institution of marriage in society and the likely effect of a legalization of same-sex marriage on that institution. Essentially, she thinks that the main public purpose of marriage is procreation—this is the reason why it enjoys the legal status it does. In this post, she asserts that marriage (or some functional equivalent) is a cultural universal—the “cultural” qualifier is important because she also thinks marriage is a functional solution to the apparently biological problem of fathers buggering off and abandoning their children:
The argument I am making is this: every society needs to come up with some solution to the fact that the default position for male-female sexual attraction (that is unregulated by law or society) is many children in fatherless homes. The second human reality societies must face is that procreation is not optional, it is necessary. Individuals don’t have to do it but societies do. The word for the social institution that addresses these problems, in this and every known human society is marriage. Sex makes babies, Society needs babies, babies need mothers and fathers.
Some quick responses to the sociological angle below the fold.
First, it is plain that the final step in that last sentence doesn’t follow at all from the first two clauses. And even if it did, the idea that this entails acceptance of the legal institution of marriage as we know it doesn’t follow either. Gallagher seems to equivocate: sometimes “marriage” means, “some institution which functions to produce and raise children more or less reliably”; other times it means “the legal institution of marriage as it now exists in the United States.” And then when it suits, the universality of the former usage is elided into the specificity of the latter.
Second, even granting that marriage-as-we-know-it fulfils the function Gallagher thinks it does, aren’t there many more pressing threats to it? As I’ve argued before, I think that anyone who argues that same-sex marriage threatens to destabilize society needs to explain why something like legal, no-fault divorce (or indeed any widespread form of legal divorce) shouldn’t be banned first. In terms of the numbers of people it affects, legal divorce should contribute much more to the deinstitutionalization of marriage than legal same-sex marriage. Now, if you think the world is going to hell in a handbasket then maybe you already believe this about divorce. But I’d want to know whether and why Gallagher in particular thinks divorce should be legal, if this is her view of the special, indeed universal, nature of the institution of marriage in successful societies. Or to put the point in reverse: aren’t there any number of policies a society might pursue to enhance the integrative/procreative function of marriage (e.g., child care and education policies, for one) before it began to worry about the same-sex issue. Again, I don’t know Gallagher’s views, but if she turns out to be against policies like this it won’t help any presumption of good faith.
Third, Gallagher’s argument from cultural universals is further weakened by her focusing on particular aspects of modern marriage, as opposed to the typical nature of marriage in, say, western history. For example,
On the gender equality issue, here I think there are sharp differences between marriage as the union of husband and wife and bans on interracial marriage (Loving v. Virginia). Marriage plays an integrative function with regard to gender: its a mixed sex institution. Moreover unlike bans on miscegenation (which were formally equal but substantively served to help keep the races separate so that one race can oppress the other), marriage not only formally, but substantively furthers gender equality, by helping reduce the likelihood that women as a class will bear the high and gendered costs of parenting alone.
In the first place, saying that marriage is “a mixed sex institution” just begs the question. This is precisely what’s in question! More importantly, the idea that marriage both formally and substantively enhances gender equality is perhaps true these days (perhaps), but it’s certainly not true of marriage in the western tradition. For most of its history in the western tradition, marriage served to eliminate or at least subordinate the wife’s rights regarding property, sex, children, and much else. Gallagher seems to want it both ways again. On the one hand, say historically marriage has been a mixed-sex institution with the strong presumption that it was about producing children (mainly to safeguard property, but leave that aside). On the other hand, say the institution has been evolving in a more egalitarian direction with the effect of furthering gender equality. But in that case it’s moving away from its old roots, and is being redefined as a special kind of contract between two equals who want to make a lifetime commitment to one another. That’s the sort of thinking that opens the door to SSM. It’s hard to take the egalitarian benefits of modern forms of marriage while jettisioning their wider implications.
I think the basic question Gallagher wants to ask isn’t a bad one. We want to think that there are institutions that really are necessary for societies to function over time. But it’s very hard to be specific about what they are—I mean, in a way that isn’t vacuous (i.e, by giving functional definitions that just restate very general conditions for social continuity), or overly specific (i.e. by giving historical description that reduce to social life as we know and like it). You can have a political fight about whether life as we know and like it is worth preserving by legal means. But that’s not what Gallagher wants. If nothing else, the justice of, e.g., striking down interracial marriage bans or upholding the Married Women’s Property Act is hard to argue against. She seeks to strengthen her case against same-sex unions by making marriage a cultural universal. But so far she’s a long way from making that case plausible. At worst, the prep work will just boil down to gesturing in the direction of a fictitious history of a single, unified marriage institution stretching back to the dawn of human civilization, one that liberals now want to dismantle. Hopefully she’ll do better than this.
[Edits: Typo corrected.]