The Little Marriage Argument That Could

By Michael Baker

Over at the Daily Caller, Mark Judge has raised a tired anti-gay marriage argument as if it’s something new.  He describes it as the argument that conservatives “are no longer allowed to make.”  Incidentally, I don’t see anyone trying to stop him from making it, though I will argue against it.

I should note that I give Judge credit for making the anti-gay marriage case based purely on an appeal to reason and with an acknowledgement of the flaws in the arguments that hinge on religious principles.  It’s a rare thing to find coming from his side of this debate.  I also agree with his point that many in the pro-gay marriage crowd are quick to pull out terms like “bigot” rather than to hear opposing views and engage in a genuine discourse on the subject.  But name calling and an unwillingness to hear the other side out goes both ways in this debate.  After all, this is discourse in which eating a chicken sandwich is a political statement.  You won’t find me eating at Chick-Fil-A, but that has less to do with my pro-gay marriage stance and more to do with my anti-diarrhea stance.  Anyhow, the fact that Judge puts forth a reasoned argument is commendable, and it’s the reason that I consider him worthy of a fair response.

Judge presents his position in two parts.  Part One: men and women are undeniably different and by virtue of those differences are evolutionarily designed to “fit” together, and that “is the reason for marriage.”  Part Two: if gay marriage were legal, that may open the door to legalization of polygamy, or other “non-traditional” unions.

Part One actually consists of two parts.  The first, that men and women are biologically different and complimentary, really is undeniable and I don’t care to argue with it.  The second, that the difference/complementary nature is the reason for marriage, is less an argument than a completely arguable assertion that for many Americans is also irrelevant.

Judge does nothing to support his assertion that the fact that heterosexual mating serves a biological function “is the reason for marriage.”  It may be the reason for the religious sacrament, and no doubt it’s a large part of the reason for legal unions, but an examination of history shows that property rights also have a lot to with it.  In most Western societies, women used to lack the right to own property, to vote, or to represent themselves in legal proceedings; as such, a woman needed a man who she was legally attached to who could carry out those functions on her behalf.  That’s all antiquated, of course, but evidently the fact that men and women can make babies as a legal justification for marriage is not, at least in Judge’s view.  The bottom line is that there’s a lot more to it than sex and making babies which, of course, men and women can do with or without a marriage license.

There’s also something to be said for the fact that people can get married even if they absolutely cannot have sex and make babies.  Just like a person could marry someone who he or she finds absolutely repulsive for purely financial or social reasons, a person who is physically unable to procreate will find no legal impediment to getting hitched, as long as his or her partner has the right equipment in their pants.  That’s how Judge prefers it, I guess, but I’m not convinced that most people – conservative or liberal – truly care that our biological makeup is “the reason for marriage,” except, of course, to the extent that it comes in handy when making an anti-gay marriage argument.  And that’s assuming that Judge’s absolute assessment of “the reason for marriage” is correct, which I’m also not entirely convinced of.

Part Two is an argument that I’ve heard so many times and that’s so clearly flawed that I’m a bit confused as to why I haven’t heard more in the pro-gay marriage crowd offer a retort – if two dudes can marry, then why can’t three dudes, or four dudes and six chicks, etc.?  Judge points out, perhaps correctly, that he has yet to hear an answer to this question.  Well, today’s his lucky day.

First, let’s keep in mind that we’re talking about legal marriage (conservatives like to forget that point, but it’s an important one), and legal marriage is a contract.  It’s a very unique and specific contract, but it’s a contract nonetheless.  Part of what makes it so unique and specific is that it gives one party very particular rights with respect to the other, and vice versa.  Person A gets certain rights with respect to Person B, and that’s to the exclusion of all other Persons.  You probably see where I’m going with this – marriage is a binary contract; by definition, it only works with two parties.

If we try to conceive of the marriage contract with more than two parties, we run into all sorts of practical problems.  What happens if Wife 1 and Wife 2 disagree about how to exercise their rights with respect to Husband?  And just out of curiosity, how would Husband 4 feel about that?  In other words, polygamy changes the actual substance of the marriage contract, while same-sex marriage only changes the law regarding who can enter into that contract.  Perhaps the fact that this is totally obvious to anyone who understands the way that legal marriage works is why no one has bothered to clearly address it before.

And just to clarify, is it Judge’s position that gay marriage would be acceptable if we could establish that it would definitely not lead to the legalization if polygamy?  Because that’s a constitutional amendment that I think we could actually get ratified.

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