Through two days worth of oral arguments in front of the Supreme Court, I did not hear a single justice ask the question I would have asked, if I were (un)fortunate enough to be on the bench. So I will ask it myself now.
Mr. Olson (anti-Prop-8) in particular, but also Ms. Kaplan (lawyer for Edith Windsor), if I were to ask the other side the question I am about to ask you, I'd get a remarkably similar, but ultimately lacking, answer. I wonder if you have such conformity. The beginning of most arguments must start with definitions of terms, else we are liable to talk around ourselves and our issues to no avail. Therefore, please define in simple terms the word "marriage" by which you are making your legal case."
Their opposite members are backed by slogans and history and mathematical equations. Marriage = 1 man + 1 woman. Adam and Eve not Adam and Steve. So their ability to form a unified answer shouldn't be surprising. Neither should the likely flummoxed answers from those lawyers when asked the question I posed be surprising. The gay marriage movement is more about destructing our concept of marriage than it is about building one. That is probably the primary reason I am personally so fundamentally opposed to it. The moral reasons are at play, but only in the context of religion. I am opposed to gay marriage in it's current format because the proponents are modernist relativistic iconoclasts.
To quote and abuse poor Chesterton, consider this: A fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”
So what is the purpose of marriage? And because I am asking two questions at once: what even is the definition of marriage? I confess, as I answer these on behalf of those who proclaim themselves to be my opposition, I must place words in their mouths. I will not be able to do so perfectly, but I shall strive to do my best to give their argument fair merit and logic and encourage any refinement thereof in comments.
While ultimately the major disparity will show in the PURPOSE, the definition is where I said we must start. The definition(s) I hear being bandied about involve "love", "equality", "commitment", "natural human desires/emotions". So in an attempt to come to a complete definition including these fairly, I have this: "Marriage is the institution and process by which individuals pledge troth of love and certain conditions of fidelity for an open-ended period of time." The 'traditionalists', in a complete lark start complaining about children. No, not yet. We're still on the definitions, not purpose! They get so inter-tangled unless we use great caution. There was no greater reason for brain bleach in the entire two days than hearing Justice Kagan, both rightfully and awfully, assailing the lawyers over elderly/sterile married heterosexual couples and their lack of capacity for children, or purpose in marriage. For the moment, let us forget children, we shall come back to them later, but if we're being fair, neither set of definitions can rightfully contain them as a factor, even attempting to allow purpose into the definition, in the context of biology and history.
The definition I have provided here is necessarily very open. It needs to allow divorce. It needs to encompass the possibility of more than two individuals in the marriage, and as such, and even within a two-person union, needs to permit for an openness of sexual relationships. Any attempt to close down the relationship more tightly seems to restrict one of these elements that at least a large minority do not want restricted. Ironically as put, and without the purposes, the definition would not offend traditionalists. They would of course impose additional restrictions on the purpose, the actors and the sexual relations, but the general framework isn't the problem.
So let's get to purpose, it is the crux of the matter. It's the thing that both the iconoclasts and the traditionalists miss. To be fair, I've missed it myself in the past and had to be reminded in a strange way.
I was at the wedding of a friend of mine. The wedding of course was Catholic and the celebrant was a Deacon, which is permissible, but not the norm. There was a lot about this wedding outside the normal. The deacon took the wedding party's men aside and quizzed us. What is the purpose of marriage he asked. There was a lot of shuffling of feet. Well-educated, apologetically trained Catholics... not a one of us had a good answer ready. Eventually one of us said something similar to the definition above. Someone braver added that it was the 'permissible' way to have sex; thank you St. Paul! The Deacon concurred that all of this was valid, but missed the point, calls me out for the better answer. I stutter out my best, and he looks at me appalled. "You just said exactly what he (points) said, only in more flowery language". I had. Then the Deacon hit it with us. While love and kids and sex were all integral to marriage, the purpose is about the individuals themselves, and each of us has a goal in life: to get to Heaven. Marriage is a vocation, a path in life that leads us towards Heaven. The purpose of marriage is to have the husband and wife each help the other towards that goal.
Holy shit! No wonder the iconoclasts miss it, it's a spiritual reason! But the traditionalists have no excuse, except for the excuse that I had myself I did. We forget about the forest when looking at all these trees. We focus on the visible elements of life, and ultimately the visible elements of marriage, because our society is increasingly secular.
The real purpose of the argument about PURPOSE though is lost even deeper in the weeds because it's still taboo to talk about. Not sex, sex is out man. We chat that stuff on a daily basis. Straight sex, homosexual sex, animal sex, menage a trois... ad infinitum... it's on our TVs, it's in our books (thankfully I've managed not to read 50 Shades of Anything, but I feel I'm in the minority) it's in our movies, it's smeared all over our culture. The taboo is about money. While Prop-8's lawsuit is about definitions, Ms. Windsor's lawsuit against DOMA is rightfully about money; a lot of it. She's out better than $350K because the federal government refuses to recognize her 'marriage' under the tax laws when her partner died. And now she can add on a lot more in legal fees. And she's basically 100% right. It's discriminatory and unfair for her partner (really herself, but it's the partner who is taxed officially) to lose all that money to taxes just because she's homosexual and in a life-long loving relationship. A marriage by the definition supplied above, and recognized as such legally in another jurisdiction.
The fact is that marriage is taxed differently from non-marriage. It's discriminatory. There's
anti-marriage discrimination but mostly it's pro-marriage. Governments discriminate frequently on many subjects for many reasons. But under the United States history of jurisprudence there has to be an overwhelming benefit to the state in continuing discrimination of this nature, or even permitting it in civil society. The only plausible argument is that the state benefits from a continued population, and population growth, and so therefore favors heterosexual marriage... I told you we'd be back to kids. But as is clear from spending more than 5 minutes thinking about it this is not an overwhelming benefit to the state; there are are too many flaws. Old couples and sterile couples are just the tip of the iceberg. They would get the benefits unless those benefits were rewritten to be more child tax credits. Then the homosexual population is the minority, best estimates are at about 5%, as many as 10% is the highest percentage I've ever even seen offered. There's no way that providing benefits to these couples detracts at all from our child-raising possibilities. And all of this ignores the prospect for homosexual couples to adopt or even reproduce through advanced medical technologies. Biology is very weird.
So, the discrimination is going to fail. DOMA will be overturned. Prop-8 may survive, but if it does, probably on a technicality. And even if all of this si wrong and the traditionalist win at the end of the Supreme Court term entirely by some miracle, they lose in the long run, because the situation is untenable, and public opinion is rapidly shifting against them.
The last point in the favor of the iconoclasts is the reasonable desire to select a 'next of kin' for medical type decisions. I love my parents, but my wife knows better still how I want my affairs handled if I find myself terminally ill and incapable of communication. We've actually talked about it. This is a matter of simple contracts, but yet simple contracts that most people never make. Marriage has been a stand in for generations, and we seem to want to leave it like that.
So what's the ideal solution? Civil unions? Probably. Legally recognized unions of a very broad nature, terminable upon consent of one or more parties, conferring with it certain legal rights and benefits. On the personal level it can be about love, or tax breaks or whatever a person feels is appropriate.
So, knowing all that, you might ask why I'm beating the drum on ostensibly the traditionalist side? It's because the traditionalists are right. Not in the legal sense, but the moral sense. They have erred for generations, and still do in trying to use the law to enforce morals. Marriage is a spiritual thing, and there is no benefit to the spirit in homosexual marriage. There will be no graces conferred. A homosexual spouse may assist the other in being a better person; but being a better person by itself does not get you to Heaven. These unions aren't marriages, no matter what you call them. They haven't ever been. The only marriage that exists is the sacramental one.
What sets that one apart is the spiritual side, but a broad spiritual one, and the history within the spirituality. God himself is the designer of marriage, and Christ affirms it and applauds it. His first miracle occurs at a wedding, which is not just an interesting coincidence. Marriage remains but a pledge between individuals, but when witnessed by God--when God is permitted to enter the marriage as well, it offers that spiritual benefit. There are many marriages--some might say most--homosexual or heterosexual that fail to meet that test. And failing sacramentality is not a reason to fail in justice.
Tear down the legal marriage and rebuild it with a new and modern one to suit your purposes. It won't affect the sacrament at all, the sacrament will not change, nor will nor should churches change to meet the popular demand of the times. But as you tear it down, at least understand WHAT you are tearing down and WHY it exists. Understand the why, and perhaps you'll be wise enough to be permitted to tear it down.