I’m not a legal scholar or an expert on the issue of same-sex marriage, but I’d like to offer some thoughts I have had on the subject for some time. Specifically, I want to address the complaint that the traditional restriction of marriage to unions of a man and a woman are discriminatory against gay and lesbian persons.
I would suggest that laws prohibiting two men to marry one another, or two women to marry one another, are not discriminatory at all. They do not even discriminate based on sexual preference or orientation. If you’re homosexual, you can still get married, as long as it is to a person of the opposite gender. To understand why this is not discrimination, consider a far more common sexual orientation and its relevance to the issue of marriage.
A fairly typical male has natural inclinations or proclivities toward sexual relationships with multiple females. That is, he has biological urges that cause him to find women sexually attractive other than his wife. Moreover, this typical male doesn’t seem to be able to eliminate these feelings. They appear to be natural to him. For some reason, he has not yet been added to the alphabet soup of persecuted groups, LGBTQIA, but perhaps he should be. After all, there are a lot of guys in this category, and they get no respect. Admittedly some females have a similar desire to be united sexually with multiple males, and we don’t want to ignore them. Call these people, both males and females, the polyamorous, or the promiscuous, and add them to the mix. Now we have the LGBTQIAP.
At the present time the law allows Ps to pursue sexual relationships with any number of females that they might like as long as they are adults and consent. However, a P cannot be married to more than one woman. He can set up house with each one, if he can afford it, and procreate children by each one, but the fact is that he would not be allowed to marry any of them except one. The law does not allow him to marry anyone else as long as he is already married. Is this “discrimination”? No. The law is not discriminating against promiscuous men. The fact that he may feel that he sincerely “loves” more than one woman does not make the law discriminatory. The P is free to marry; but he is free to marry only one person. The male P is free to marry one person, and that person must be (a) female, (b) not a biological relative within certain parameters, (c) an adult, and (d) consenting to the marriage. So the law is not discriminating against him personally, nor is it discriminating against a class of people (the Ps).
A promiscuous man, then, may marry if he chooses. In doing so he is choosing to renounce his natural inclinations toward multiple sexual partners in the interests of a higher purpose. Billions of Ps have done just that throughout history; thousands of Ps are doing this every week. If a man simply finds refusing his promiscuous inclinations too painful, he is also free not to marry. But it would be ridiculous to claim that marriages with multiple partners needs to be made into a legally sanctioned and protected form of marriage on the grounds that not doing so “discriminates” against the P class of people. At least it seems ridiculous now to most of us. I suspect it already seems sensible to a few of us and that it may seem less ridiculous as our society abandons the traditional understanding of marriage. However sensible or ridiculous one may find such an idea, the fact remains that laws limiting marriages to unions of just two persons are not discriminatory.
Similarly, laws against incest discriminate against no one. Suppose a man and his sister feel that they are in love and want to live together, share property together, have each other in their wills, procreate or adopt children together, etc., etc. Is the law discriminating against them by refusing to recognize their relationship as a marriage? No. Refusing to sanction certain types of unions as marriages is not discrimination. Our law refuses to sanction as marriage sexual unions between an adult and a child, between two consenting adults who are siblings, and between any two individuals if one or both of them are already married to someone else.
Likewise, the lack of legal sanction for same-sex marriages does not constitute discrimination against any individual or class of individuals. No law currently requires anyone to identify his or her sexual orientation prior to getting married. Any consenting adult may marry any other consenting adult within certain limitations: the other adult must not be a close biological relative, must not already be married to someone else, and must be of the opposite gender. The law does not ask how you feel about sex with persons of the same gender or of different gender; it does not ask how many persons you find sexually attractive. It therefore does not discriminate against a class of persons based on their sexual orientation. It does, however, limit the government’s official sanction of marriage in specific ways. One may not like those limitations, or one may argue on some other grounds that they should be eliminated, but they are not discriminatory.
The main objection to the above line of reasoning is that it would mean that prohibiting people of different races to marry one another would not be discriminatory. After all, anti-miscegenation laws, so the objection goes, prohibited no one from getting married, but only prohibited certain kinds of unions, namely, interracial marriages. There are a lot of problems with this objection, not the least of which is that race is an amorphous construct that cannot be defined in a clear enough way to be coherently applicable to marriage laws.[1] It is really not even possible to find an arbitrary standard by which anti-miscegenation laws can be consistently enforced. Those laws, which were on the books in some states in America for two to three centuries, were unjust laws, but not because they “discriminated” against a particular class of people; they applied to ALL people and were nevertheless unjust. Anti-miscegenation laws were irrational on their face: supposedly a single drop of “Negro” blood made a person a Negro, but many drops of “White” blood did not make a person a White. We now know that far more Americans commonly classified as “White” have ancestors of African descent than one could guess by looking at them or even looking at a typical family tree going back a few generations.[2] There is simply no valid comparison between anti-miscegenation laws, which were themselves legal innovations, and the traditional view of marriage as a societally sanctioned union of a man and a woman.
Another problem with this objection is that miscegenationist marriages entail no differences in potential functionality than any other marriages. A black man and a white woman who are married can potentially perform any function normally associated with marriage in the very same way as a white man and a white woman. The claim here is not merely that each and every mixed couple can procreate; it is that a couple, by virtue of its being mixed, is in no way hindered from procreation. By contrast, each and every same-sex couple, simply by virtue of its consisting of two persons of the same gender, is by definition hindered decisively from procreating. Thus a normal function of the marital union is at least possible in most marriages regardless of race or ethnicity but is by definition impossible in any same-sex union.
Also, any heterosexual couple by definition will have one parent of the same gender as any child the couple might procreate or adopt, whereas approximately one-half of all children adopted by same-sex couples (assuming an approximately equal number of gay and lesbian adoptive couples) will necessarily have no parent of the same gender. About half of the adopted boys in such households will be raised with no father. The empirical evidence is overwhelming that the lack of a father will be disadvantageous for boys. This fact cannot be swept aside by citing exceptional circumstances; there are bad heterosexual parents and I would assume by contrast admirable homosexual parents, but overall children do better if they have parents of both genders, and particularly if the boys have fathers.[3] I have nothing but admiration for women who through no fault of their own are doing their best in raising their children without husbands, and I acknowledge that homosexual parents would all things being equal be better than no parents or abusive parents. But these qualifications do not change the fact that same-sex unions, by their very nature, cannot provide the normal dynamic of child-rearing produced in families that have a father and a mother. Obviously, this potential problem does not apply to racially or ethnically mixed marriages, so once again the analogy to anti-miscegenation laws is invalidated.
Having given some reasons why restricting marriages to heterosexual unions is not comparable to anti-miscegenation laws, the argument I presented above stands that shows that disallowing same-sex unions as marriages is not discriminatory. It is more like disallowing incestuous unions as marriages, or disallowing polyamorous associations as marriages. Any consenting adult may marry any other consenting adult, but “marry” here has a specific, recognized, historic meaning, namely, to enter into a publicly-sanctioned, exclusive, perpetual union with a person of the opposite sex. If the couple are siblings, or if their expressed intent is only to enter into a temporary living arrangement, or if the persons forming the union number three or more, or if the union includes two persons of the same sex, then by definition it is not a marriage. It is not arbitrary to define marriage in this way, nor is it discriminatory.
NOTES
[1] On the difficulties inherent in defining race, see, for example, C. Loring Brace and George W. Gill, “Does Race Exist?” Nova, 15 Feb. 2000 (presenting opposing viewpoints); Michael J. Bamshad and Steve E. Olson, “Does Race Exist?” Scientific American, 10 Nov. 2003.
[2] For an interesting article on this subject, see Steve Sailer, “Analysis: White prof finds he’s not,” UPI, 8 May 2002. The article reports that an estimated 30 per cent of “White” Americans have “Black” ancestors.
[3] See the National Fatherhood Initiative’s webpage on research data on the consequences of father absence, which includes helpful citations. Only some of the data can be explained as the result of only one adult in the household.
35 replies to "Is Limiting Marriage to Unions of a Man and a Woman Discrimination?"
Excellent post. This is the argument I have adopted of late. It is disheartening to see the language of the issue changed to one of civil rights, because it shuts down discussion and makes anyone opposed to gay marriage a prima facie bigot.
For the record, I agree. However, the courts may not. People with a bent toward homosexuality have had great success in making their conduct their status. Once ‘homosexual’ became a status, we started sliding down a slippery slope that will end in marriage rights for homosexuals (i.e. the kind of rights they want – you argue well, that they already have all of those rights) unless someone airlifts us off that hill.
I like what you said about the interracial marriages and how they differ from same-sex marriages. I’d add one point that highlights the vast difference between them. In the interracial case, a status was assigned to people that refused them certain rights. Removal of that arbitrary status was the key in understanding equal rights. In the case of same-sex marriage, a status has been manufactured and is now being used to demand peculiar rights (like marriage b/w two men). The pathway to equal rights in this case, though, is the same as that in the interracial case – remove the pseudo-status.
Nice logical reasoning!
Note that Mormon polygamist sects have been watching for this Supreme Court ruling because of the reasons you stated. If homosexuals marry then they can marry too.
i have made the same point in your paragraph right under the picture in the story: http://theologyarchaeology.wordpress.com/?s=same+sex+marriage first five articles
That’s what I’ve always thought about the “born that way” argument. Sure, I’ll give you that. But, does that mean that a man attracted to more women than his wife can bed down with them all just bc he’s “born that way” or “it’s natural”? NO! It’s still sin. If it’s the particular sin you “naturally were born with” a desire for, doesn’t move it from the sin category. You seek God and turn from it.
Are we soon going t call 5 men and 8 women that all want to marry one another a “marriage”. If not, why not?
Let’s put away this whole polygamy canard once and for all.
First of all, polygamy and promiscuity are not the same thing. Sanctioning polygamy is not the same as giving men license to sleep with whomever they want. Second, no one is knocking down the doors of courthouses demanding plural marriage. Why? Because women have no reason to want to be in polygamous marriages anymore. We don’t need it to bolster birthrates, and women have much better options for societal advancement than entering into plural marriages with higher class men. Men, women, and the rest of society receive no discernible benefit from plural marriage. That’s why we not only don’t allow it, but why it isn’t even an issue. Gay couples, on the other hand, have a lot to gain from having their unions recognized by the state, and so does the rest of society.
If there were people in our society demanding the legitimization of polygamy, we would have to weigh the pros and cons in a serious way, just as the best of us are doing with gay marriage, rather than simply ruling, “Well, we haven’t historically allowed it, therefore we shouldn’t,” Or crying, “If we allow polygamy, where will it end?!” Many things have been called marriage throughout human history (more than you would probably think), and the legitimization of any one of those things by modern society does not automatically lead to the legitimization of the others, and if we really believe that certain kinds of relationships should not be accorded the benefits of marriage, then we shouldn’t be afraid to detail exactly the reasons why rather than appealing to tradition or resorting to slippery slope arguments.
Maybe the language of discrimination isn’t right. Not every relationship deserves to be called marriage by the government. But what if gay marriage does? If we have good reasons to legitimize it and no good reasons not to, then we are being unfair, and unjust.
There are some polygynists and people who engage in polyandrous relationships.
If it is about equal rights and not discrimating against anyone (consenting legal adults) then what is the justification for denying them?
I’m not sure it’s fair to say that marriage historically implies exclusivity. There are after all many cultures where polygamy is quite normal, including ancient Jews, and even the NT doesn’t actually rule it out. Therefore I wonder if your statement that not allowing polygamy is not discrimination. It definitely is discrimination against certain kinds of relationships. I suppose what you are saying is that it is not discrimination against individuals. One might argue I suppose that it is discrimination against married people. Married people are denied the right to marry, so they are discriminated against.
Of course, it’s all an argument about word meaning. What the word discrimination means, is rather arbitrary, and ultimately irrelevant.
Of course it is discrimination. But it is RIGHT AND PROPER to discriminate against that which is wicked, wrong, perverse and will bring God’s wrath (Romans 1)
But God commands us to discriminate between good and evil, right and wrong, righteousness and lawlessness etc. every day.
If we fail to discriminate about virtually all things on a daily basis, we would die of poisoning (failure to discriminate between edible and toxic material).
We discriminate when we choose who we leave our kids with on a daily basis (do we trust the public school teachers or the local registered sex offender to watch our kids).
We discriminate all day every day about all things.
And God commands us to do this.
The difference between right discrimination and wrong is if we base our discrimination off of truth (objective truth being God’s word) or subjective opinion based on our fears and predilections.
1 Corinthians 2:15 But he that is spiritual judgeth all things, yet he himself is judged of no man.
1 Thessalonians 5:21 Prove all things; hold fast that which is good.
Hebrews 5:14 But strong meat belongeth to them that are of full age, even those who by reason of use have their senses exercised to discern both good and evil.
1 John 4:1 Beloved, believe not every spirit, but try the spirits whether they are of God: because many false prophets are gone out into the world.
I agree. Once you allow though one aberration then the flood gates will open.
Dan,
Tens of thousands of people in the United States are members of polygamous families. Your claim that it is not an issue any more is factually and demonstrably false.
My analogy was not that polygamy would sanction men sleeping with any women they want. That is already legal. It is a fact that there are people who profess to have sincere emotional feelings of love for multiple partners. They may truly be sincere. By the usual reasoning that it is wrong to refuse marital status where consenting adults profess such love, marriage laws should be changed not only to permit same-sex marriages but also plural marriages (and incestuous ones, as I went on to note).
In law, it is routine to ask not only what a particular decision would mean in the immediate case or group of cases under consideration, but also what legal precedent that decision would create. That is not a “slippery slope” fallacy. It is standard legal reasoning.
It is also standard legal reasoning to consider how a particular issue has been viewed in legal history as a factor to be given due weight (e.g., in what is known as stare decisis). This is not the same thing as a mere appeal to tradition.
John,
It is true that various cultures in history have featured polygamy (mainly polygyny), and where this has been an accepted practice exclusivity has not been regarded as an essential aspect of marriage. However, monogamy has held sway as the standard in our society and in many others for thousands of years, and it has become a fundamental aspect of marriage law almost everywhere outside Islamic nations, where sharia law permits a man to have up to four wives. So while you could argue that my statement needs some qualification, I would argue that there is ample legal precedent as well as multicultural and broadly historical reasons for keeping exclusivity as an essential element of marriage law.
As I said, marriage laws do not discriminate against individuals, but they do refuse to give legal sanction to certain kinds of unions. If you want to argue for the use of the word “discrimination” for such limitations it wouldn’t bother me except that the word has a quite well established connotation. There is already plenty of confusion over this issue. Broadening the term “discrimination” to include prohibiting plural marriages, incestuous marriages, etc., weakens the value of the term and invites confusion.
Jeff,
As I just told John, I understand that people may wish to use the term “discrimination” in another way, but in our society the term is generally understood to refer to unjust treatment of specific classes or types of people. I’d like to avoid confusing people with alternate uses of the word.
Rob,
You said:
“My analogy was not that polygamy would sanction men sleeping with any women they want. That is already legal.”
How so? In what state’? And even though David and Solomon did it does that make it ‘legal just because it is between a man and woman?
As a hetrosexual, while I am understanding what you are saying on what terms exactly do you define ‘legal’?
For the sake of the good of society we discriminate in may ways.
We don’t let brothers and sisters marry. Are we discriminating against that behavior? Sure we are!
“the word has a quite well established connotation. ”
What is that meaning in your view?
“in our society the term is generally understood to refer to unjust treatment of specific classes or types of people.”
Aren’t married people a class of people? Denying that class of people the right to marry could be classified as discrimination.
I think it would be discriminatory, BUT by the actual definition of the word, not the socially-accepted definition.
Discriminate means simply to pick or choose between two or more options. For example, I discriminated against my gray shirt when I chose my black shirt over my gray shirt. As a society, we discriminate against people under 21 years of age by not letting them legally drink. We discriminate against individuals under 16 years of age by not letting them legally drive. We discriminate against the unborn by being able to legally abort them (which I think is wrong, by the way). We discriminate against felons by not letting them vote.
Discrimination isn’t necessarily a bad thing, though it can be. The use of the word has stepped so far beyond its actual meaning that people don’t realize that discrimination is what the law does. That’s what it’s there for — to set up boundaries.
mbaker,
“Legal” means allowed by law. The word has nothing to do with whether certain individuals did something, whether in the Bible or today. To be legal means to be permitted by law.
Currently, the law in the United States and many other nations allows consenting adults to have sexual relations whether they are married or not.
John,
Your question as to what is the usual understanding of the term discrimination was answered in comment #14, which you quoted in your next comment.
That’s a clever counterargument that married people is a class of people and therefore anti-bigamy and anti-polygamy laws discriminate against the class of married people. But John, the laws do not “deny that class of people the right to marry.” The laws deny EVERYONE the right to marry MORE THAN ONE PERSON. Thus no group of people are being treated differently than any other group of people, and therefore no discrimination is involved.
Michael,
It is not standard English usage to say that in choosing my black shirt I have “discriminated against” my grey shirt. Your other examples are better. You could also say, using your implied definition of the term, that we discriminate against minors by refusing to allow them to get married.
I agree that there is a broader usage of the word “discrimination” that is not pejorative. However, as I told Jeff, in the context of law, “in our society the term is generally understood to refer to unjust treatment of specific classes or types of people.” Notice the qualification “unjust.” In this conventional legal sense of the term, laws protecting children are not discriminating against children. Our governments do not allow children to obtain driver’s licenses, to vote, to buy alcohol or cigarettes, to get married, to adopt other children, or to be employed outside of certain restrictions; all such laws either protect children from harming themselves or others or from being unjustly used or manipulated by adults.
Felons *forfeit* a range of rights by committing their crimes; they forfeit their right to move freely from place to place, to engage in most forms of business, and to participate in politics (including voting). Laws that stipulate that the commission of certain crimes may result in the forfeiture of such rights are not discriminatory in the legal sense under discussion here.
I certainly agree with you that legalized abortion is discriminatory against unborn children.
Rob, I suspect you might be obfuscating the distinction between being married, and getting married. I suspect its actually the GETTING married which is the illegal part, not the being married. I suspect a polygamous Muslim visiting the USA won’t get arrested.
So… does the law deny everyone the right to marry more than one person? Well, no. If your spouse dies, you can marry. If they divorce you, you can marry.
You might say, well the law denies EVERYONE the right to marry, IF they already are married to someone else. But that IF part is the sign there is discrimination against a class of people, no?
Michael, in the video you all sent out yesterday from a little while back Tim mentioned in it that Brian McClaren is a friend of the Credo House ministry I believe. I think something I struggle with and maybe others is how do we relate to those in our midst who would call themselves Christians and seem like nice people but also support gay marriage and do not see it as a sin? I say this after seeing that Rob Bell has come out supporting gay marriage and now Brian McLaren backing him. Just curious if you have any insight on how our interactions with them should look.
Well, that is a tough one. First, if Tim did say that, I will blame it on the crack I supplies him. 🙂
We are not friends with McLaren or Bell. Both have, unfortunately gone to places beyond the historic Christian faith in many ways. What do we do about them? Pray for them and he’ll others see their errors with as much grace as possible least we fall into the same sin.
Hope that helps and I will go smack Tim around a bit.
It is very possible I misunderstood what Tim was saying in the video. Thanks for the insight!
I see two levels of reason regarding marriage: biological and social. Few would disagree that the biological function of procreation was contrived by man for his capricious benefit. It is a given feature of mankind, as reveled to Adam upon his introduction to Eve: For this reason a man will leave his father and mother . . . which begs the question, how did Adam know about fathers and mothers, being created by God? My point is that “being joined together” is and always has been the only sanctioned basis of human growth and is the basic social unit. I am fully aware of notable men with multiple wives and concubines, etc. – I am talking about God’s original design for mankind, you know, Biblical authority, and all that.
The social part is the one with all the thorny issues. If we see a man and woman with their children, we immediately recognize a family, but we do not see a marriage. That is a social and legal definition. It describes this basic family unit, biological utility, and all. It is a concept.
If two men want a legally santioned relationship, as in marriage, that is a decision we have to make as a society. But a marriage is still what it always has been.
John,
You wrote: “Rob, I suspect you might be obfuscating the distinction between being married, and getting married. I suspect its actually the GETTING married which is the illegal part, not the being married. I suspect a polygamous Muslim visiting the USA won’t get arrested.” The answer to this argument is simple: The polygamous Muslim visiting the USA is not an American and is not subject to American marriage laws. I guarantee you that a Muslim who moved to the USA and became a citizen would not be allowed to claim four wives on his tax return!
The alleged obfuscation is just not there. I have been addressing the issue of GETTING married all along. One may not legally GET married if one already has a living spouse. One may not legally GET married to a person of the same gender. But the “getting” and the “being” are related. If a man “gets” married to an underage girl and then is caught, he will not be allowed to “be” married to her any longer; in fact the marriage will be annulled (declared null and void).
Next, you said: “So… does the law deny everyone the right to marry more than one person? Well, no. If your spouse dies, you can marry. If they divorce you, you can marry.” This criticism confuses getting married *for a second time* (but still *being* married to only one person) with getting married *to a second person while still married*. The point is that currently a man is not legally allowed to enter into a situation (“get”) in which he would “be” married to two women at the same time.
You wrote: “You might say, well the law denies EVERYONE the right to marry, IF they already are married to someone else. But that IF part is the sign there is discrimination against a class of people, no?” No. It is not.
C. Barton:
Genesis 2:24 (“For this reason a man shall leave his father and mother…”) is not reporting words addressed to Adam. It is an editorial comment in the Genesis narrative by the author (Moses, I would say) to the Israelite readers, who of course knew by experience what fathers and mothers were.
I agree with you as to the authority of biblical teaching about marriage, since what Scripture teaches is God’s revealed word. However, it is not always necessary to appeal to Scripture when reasoning with non-believers (see Acts 17:22-31 for the classic example reported in Scripture itself). In this article, I sought to present an argument that uses reason without appealing to Scripture.
Bowman: Thanks for the clarification. I assume that Adam was around long enough to see other creatures being fruitful, but the “become one flesh” part is a mystery, also alluded to by Apostle Paul.
I agree that rhetoric and reason are often preferred when arguing with the world. Alas, the biological argument just gets me labelled a “Breeder”, while others choose to “marry” without adding to the “overpopulation burden”, and on it goes. They are, in some ways, superior in their rhetoric, while our constant appeal to Biblical authority almost seems lame in comparison (in worldly terms).
The solution? God put knowledge of Himself and His desires in the earth, He programmed knowledge, if you will, so that we can in fact use concrete examples that are readily understood.
That’s my contention, anyway.
Rob,
You said, “marriage laws do not discriminate against individuals”
Do you think that this is why the public dialogue seems to have shifted to news reporters, politicians, pundits, etc. using the nomenclature of “discrimination against same-sex couples” instead of addressing individual rights?
CMP – Woe! woe! woe! Wait just a minute! So you would dis-associate with someone based on “historic Christian faith” which are not “essentials?” You just might be a Fundamentalist! 😉
Rob,
I understand that you are stating the law of the land in regard to your definition of legal now, but what is the difference between legal according to the law of the land, and your understanding of lawful as in the word of God? I did not see clearly defined in your post.
Could you please spell that out? Thanks for any clarification on the differences as to how you see them you can give.
mbaker,
My post did not discuss what is “lawful as in the word of God” because the purpose of the post was to address a misunderstanding in civil law. The two are not necessarily identical. For example, coveting is contrary to the law of God in Scripture, but one cannot legislate against coveting in civil law. (As a matter of fact, the Mosaic Law also contains no civil penalties for coveting.) Again, my intention was to present an argument that addressed the discrimination objection in such a way that one would not need to be a Christian or to accept the Bible as God’s word in order to accept my conclusion. This doesn’t mean I ignore the Bible’s teaching; as a Christian, I accept the Bible as God’s word.
Yes, Rob, I got that, and agree with the legal aspects you have presented but I think it is necessary and cogent to represent both sides of the story. I think anyone, Christian or not, can certainly present your argument effectively. The question is how does it represent our faith as well?