Scholars divide on legal consequences of same-sex marriage
After the Supreme Court’s Obergefell v. Hodges decision last summer, questions of religious freedom and the future of marriage continue to emerge. On Tuesday, Stephen Macedo, Professor of Politics at Princeton University, and Ryan T. Anderson, William E. Simon senior research fellow in American principles and public policy at The Heritage Foundation, engaged in a debate over these issues.
Macedo argued that the revisionist view of marriage adopted by the Supreme Court is the correct legal view and need not lead to the legal recognition of polyamorous relationships as marriages. On the other hand, Anderson contended the Court simply adopted one view of marriage and forced this view on all Americans. Further, he believes the revisionist view will degrade the institution by allowing polyamorous relationships to be considered legally as marriages.
Macedo began by noting the increasing support for same-sex marriage over the last 30 years, especially among young people. Citing the Supreme Court case Lawrence v. Texas, he argued that a majority—which is now the minority—should not enforce its view of sexual ethics on the whole society.
Macedo defended what he deemed the “common sense view of marriage,” which is dominant in America and can include same-sex couples.
“I take its core to be a public declaration of two people who commit in public to loving and caring for one another over a lifetime and to build a life in common together. This is the core of the marriage vows,” he stated.
He denied that his view reduced marriage to a merely emotional bond but rather asserted that marriage builds upon a pre-existing emotional bond.
“Marriage is a solemnized public commitment surrounded by immense cultural and religious resonance to settle down with another person,” Macedo argued. “It perhaps is built around an emotional bond but it is not the emotional bond, it seems to me, it is the commitment of two people to build a life in common together.”
Macedo stressed the importance of marriage as a public recognition of a couple’s commitment to each other, observing that marriage is the only institution that allows two people to communicate this bond in public. Because of the public nature of the commitment, marriage laws are necessary, he argued.
“People want to get married not just as matter of private desire, not just as matter of private commitment to another person, but in the eyes of the whole society. They want it to be recognized that they have entered into this public commitment,” Macedo explained. “And the law of marriage facilitates the realization of people’s serious desire to get married and to be known to be married as a matter of common knowledge before everyone in their society.”
He further argued that the government could only exclude same-sex couples from this public institution if it found just reason, which he believes it did not. On the contrary, Macedo maintained that the legalization of same-sex marriage will reverse the decline of the institution, based off of the fact that large numbers of same-sex couples entered into marriage after the decision.
Macedo does not foresee the extension of marriage to include polyamorous relationships because human nature tends toward a bond of two. “The twoness of marriage makes sense because of the way human beings are constituted, heterosexual or homosexual, to make this kind of commitment to one another in a marital relationship,” he said.
He then argued that polygamy is inconsistent with gender equality and therefore not a valid institution in a free society. He also pointed out that polyamorous relationships constitute a small minority and are not yet demanding marriage benefits, and therefore, he asserted, marriage need not be extended to include them.
Anderson began his portion of the debate by noting the decline of the institution of the family, explaining that 40 percent of American children are born to single mothers. He argued that the revisionist view of marriage—which gained popularity in the U.S. at the time of the Sexual Revolution—is to blame for this breakdown of the family.
“This was the early onset of the Sexual Revolution, an early onset of an understanding of marriage and sexuality, which says that consenting adults should do whatever consenting adults want to do, that there is no right or wrong or better or worse when it comes to autonomous consensual adult activity vis-à-vis human sexuality,” Anderson said.
Anderson argued that this view holds that love is the only requirement to make a marriage, which should last as long as the love lasts. He clarified that gays and lesbians are not responsible for this understanding of marriage, but same-sex marriage simply extends this view to its logical conclusion.
Anderson pointed out that Macedo conceded the conjugal view is a valid and publically reasonable argument and therefore, Anderson argued, the Court should not have forced one of these two competing views of marriage on the entire American people.
“I don’t think there is anything in the U.S. Constitution that tells us what sort of consenting adult relationship is a marital relationship,” he explained.
Anderson laid out the conjugal view of marriage, which requires a comprehensive union of the spouses, in contrast to Macedo’s view. “There is a comprehensive act that unites spouses at the level of hearts, minds, and bodies, and the reason this matters is that the body is part of who we are,” he said. “There is a certain type of act that makes husband and wife one flesh.”
“That the lovemaking act is also the live-giving act tells us something about what the comprehensive act is ordered towards. It’s ordered towards the comprehensive good of the creation of new life and the raising of new life to maturity.”
On the revisionist view, Anderson maintained, children are an optional add-on to marriage whereas in the conjugal view, marriage is inherently ordered towards procreation and the raising of children. This act, he argues, can explain the marital norms of monogamy, exclusivity, and permanency.
Anderson demonstrated how these two competing views of marriage are both viable, and concluded that because the Constitution is silent on the question of marriage, it is not up to the Supreme Court to decide for the entire country which view is correct.
“It’s only if we can answer the question ‘What is marriage?’ can we then say whether any given marriage policy is respecting our equality or denying our equality,” he said. Because the Constitution does not answer this question, according to Anderson, it should have been settled democratically.
Anderson further argued that once marriage is redefined, there is no legal principle that would limit marriage to only two people, because it is the marital act itself that logically confines marriage to two people.
“Once the Supreme Court said the male-female requirement of marriage is irrational, arbitrary, perhaps bigoted, certainly unconstitutional, what is your legal principle for limiting marriage to monogamous couples?” Anderson questioned.
Anderson closed by posing the possible threats to religious freedom for those who hold the conjugal view of marriage, citing numerous cases of bakers and florists being forced to provide services for same-sex weddings. “If this isn’t an example of the majority imposing its sexual morality on the minority … I don’t know what is. I would just suggest in the aftermath of Obergefell we should agree to disagree.”
Hailey Vrdolyak is a senior political science and theology major who considered giving up ventriloquism for Lent but decided against it. Contact her at firstname.lastname@example.org.