Where I stand on legal same sex marriage

Recently I posted a couple of blog entries that made reference to homosexuality. I didn’t seek the subject out, it just popped up in current affairs due to the publicity surrounding a couple of recent studies. However, writing those two blog posts reminded me that I haven’t actually written a blog entry laying out what I think about the legal status of same sex marriage. Contributing at least partially to that end, I submit the following.

The following is not written to convince you that my view on the legal status of same-sex marriage is correct. All I intend to do here is to ensure that you know what my view on the legal status of same sex marriage is.

I’ve heard it said that since we live in a pluralistic democracy, the fact that there exists a sincerely held view wherein the union of two people of the same sex counts as marriage (in some cases, that belief is held by two people of the same sex who believe that their relationship should be granted the status of marriage by the government), means that the government should endorse such unions as marriage in order to be fair, so that it respects everyone and gives everyone the same rights. It’s surprising how common this point of view actually is, and its existence is testimony to the shallowness with which some people think about democracy and government. The very idea that beliefs just create rights that should be enshrined in law is not even intellectually respectable enough to be rebutted. It should simply be laughed at.

If anything, the view that the government should respect the existence of ideological pluralism should lead to the conclusion that no subset of society should have its disputed views enshrined in legislation. Since law is the voice of the people, it doesn’t seem right that the law should speak on your behalf in saying something that you think is wrong. But of course, there has to be some limit to this if law is not to be paralysed. There need to be some fixed points that are non-negotiable and which the government will uphold no matter who likes it, namely basic doctrines about human rights and dignities. If there were disputes about whether black people (or white people, or Asian people) should have the same status as people that everyone else has, then regardless of that pluralism, the government would have a duty to treat those people as having that status anyway.

That said, I do not for a moment believe that I have a basic human right to a government certification of my relationship with my wife (any more than I think the government has the right to interfere with my relationship with my wife). The government’s not giving me such certification does not in any way undermine my dignity or personhood. I therefore have no time for the claim that government certification of same-sex relationships as marriage is a human rights issue. It is no such thing, because there exists no such human right. None. Since I do not believe that any human rights at all are at stake here, this takes me back to my previous comment: Some people say that if you’re going to take seriously the fact of ideological pluralism in society, and if you think that the way the government passes laws should reflect that pluralism, then you should really say that the government should certify same sex relationships as marriage.

One follow up comment suggests itself: If the government certifies any relationships as marriage, then it has to operate with a view of what marriage is. Why should the government operate with a traditional view of marriage, which is itself contested in this pluralistic society, if it refuses to operate with the view that same sex unions count as marriage on the grounds that it’s a contested view and we live in a pluralistic society?

Fair enough. That’s an extremely good question. Let me be clear: I’m not saying that I just buy hook line and sinker the view that the fact of pluralism in society really does mean that the law should reflect a pluralism of values. Here I’m granting that position for argument’s sake. But if I do grant it for argument’s sake, how do I answer this question (for argument’s sake)? If we buy the pluralist stance being taken here, then I don’t answer the question by trying to justify state certification of my marriage but not the union of two men. I answer it by agreeing. I add to this: Let’s get the government out of the marriage business (including the marriage business dressed up in a different name like “civil unions”).

I believe there is a true stance on what constitutes a marriage. It’s the union of a man and a woman who intend to be partners for life. I think there are reasons for treating opposite-sex couples in a way that is different from how we treat same-sex couples that people should be able to understand quite apart from their religious beliefs. Moreover, I’m a Christian, and as such I believe that God made us and therefore is the one who decides what we were meant for and how, in general terms, we were meant to relate to one another. I think the Bible unambiguously presents marriage as a union between a man and a woman, and therefore nothing else counts as a marriage (I think efforts to deny that this is the biblical outlook fail, as I’ve explained elsewhere). A man and a rock, a woman and a tree, a man and his favourite sheep, a woman and her horse, a man and another man or a woman and another woman who care about each other very much (in no sense do I deny or trivialise those feelings). These can all be unions of some sort, and they might be deeply meaningful to the people involved, but in my view it’s an error of fact to say that they are marriages.

In an effort to inject a little emotional and political momentum against my view, some have said that just defining marriage this way is no different to what was done by racists in years gone by. People claimed that they weren’t treating black people as inferior, they were just defining marriage as a union between a man and a woman of the same colour, and therefore denying a black person and a white person the right to marry. This however is a basic misreading of history. In fact in the type of scenario just described, blacks and whites were forbidden from marrying one another. This only made sense, of course, because they were actually capable of marrying one another, and everybody realised this. The issue is not that such unions would not, in the view of many at that time, have counted as marriages. The issue is that people believed (as some do now), quite wrongly in my opinion, that it was wrong to mix the races in marriage. My view on same sex marriage, however, is that it’s not even marriage.

Whatever views I might hold on the morality of sexual behaviour between two people of the same sex, what I have just said does not even require that one have an opinion on it. It does not say anything positive or negative about any sexual behaviour. It is neither more nor less than a stipulation about what marriage is (or is not).

There are two ways that the law can treat marriage that will not involve riding roughshod over citizens who share my view on marriage. Firstly, it could endorse my view on marriage and only enable certification of relationships that meet those criteria. I would have no problem with this, because I would think the law was right. But not everyone agrees with my view on marriage. Now, I certainly wouldn’t want the government to take a false stance on marriage. Nor, for that matter, do those who believe in same-sex marriage (they just lack the insight to realise that they’re asking us to do just that, from our perspective). There is one other rather obvious stance for the law to take towards marriage: None at all.

If I discovered that there had been an error in paperwork, and that my wife and I were not legally married, would I suddenly think that we had been an unmarried couple for thirteen years? Of course not. Even if it turned out that we were not legally married, it’s obvious to me that, based on what I think marriage is, our relationship is a marriage nonetheless. The government can do nothing to add to (or detract from) this. OK, it might be nice to have other people declare me married, but it’s hardly my right to have them do so. Whether they do or not is up to them. What’s more, if the state did not take a stance on marriage, then the “same-sex marriage” controversy would not be an issue. Those who think that homosexual acts are sinful would continue to do so while those who did not would continue to think as they do. People would form relationships as they choose (as they currently do), and the law – that is, the voice of all of us – would not be called on to officiate any of them. If you wanted to get together with friends and family, come before the church (which is what I would do, being a Christian), and make your relationship public, then you are more than welcome to. As a Christian I couldn’t imagine not doing that: Celebrating the divine gift of marriage. But why drag my neighbours, kicking and screaming, into the mix? (That last question may sound a little strange to those who aren’t used to thinking about democracy and what law really is.)

So there we are: When it comes to marriage, the government should take my way or the highway. If it’s not going to do the whole marriage thing correctly, it should not do it at all, and we would not be any poorer for it.

Glenn Peoples

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28 thoughts on “Where I stand on legal same sex marriage

  1. Jonathan, I think the whole approach taken by some when promoting civil unions, who said that “this is not same sex marriage” was utterly dishonest. It was just marriage dressed up in a different name, and yes I apply this to civil unions as well.

  2. Glenn,

    I might be totally, completely off here, but it seems to me that in the past you have expressed inclinations toward, or at least an admiration of, some form of theonomy. Maybe I was wrong to get this idea – but are you, in fact, some form of “theonomist” or do you at least agree with some of its premises?

    I am wondering because this would, of course, play a part in your view of the issue; most theonomists would argue that, quite apart from the question of whether the state should be in the business of offering marriage licenses, the state has limited powers to curb destructive behaviors.

  3. Hey Dave

    Yes, it’s true that those who embrace some sort theonomy do advocate a very “hands off” approach to government, and would, in general, agree with what I’ve said about governments not certifying marriages. But that’s really not where I’m coming from in this piece. Instead, I’ve basically said “OK Mr (or Ms) political liberal, you want us all to take pluralism seriously and you want our laws to reflect that. Let’s see where that should lead when it comes to marriage.”

    When it comes to my position that same-sex unions just aren’t marriage, I’m appealing to a claim that I expect all Christians to accept, if they take the Bible to provide an answer to the question of what marriage is, whether they admire theonomy or not.

    I do have some admiration for theonomists (and there are ways in which they get under my skin as well!), but I really don’t know that this plays a role in what I’ve said here.

  4. The question for me is..

    I believe in God, therefore I want to make vows before my God, and my family and friends..

    I think that anyone who does that and DOES NOT believe in God, is a hypocrite.

    The piece of paper is largely irrelevant, if you dont believe and follow God, why bother with “marriage”? There is no point.

    But then, as a Christian I would be remiss to point out that the “wedding of a man and woman” is an institution of God, and before you go excluding him, make sure you know what that means (to exclude God).

    I dont think the government has any place legislating “God” into such things, personally. I believe we all SHOULD be under the covenant requirements of God, but there is no point forcing it on people.

    If you catch my inarticulate drift.

  5. Geoff, by arguing that a marriage is only valid under the guidance of the Christian God you are excluding the marriages of people from other religions and cultures, ie Muslims, Hindus and in New Zealand’s case Maoris. Surely the experience these couples have over their lifetime are just as valid as any Christian’s marriage? I’m sure that they see the point in being married. How are people from these cultures being hypocritical when they have been practicing non-Christian marriage for many generations before now? Marriage is more than a Christian thing.

  6. Glenn, I agree with you that there is no such right but that is only because I am an utilitarian. Now I have to work out which consequences of this issue would bring about the most happiness of preference satisfaction.

  7. Pat, Marriage in “western culture” IS Christian… I make no reference to hindu’s bhuddists or any one else.

    In New Zealand, when you have a “traditional” wedding, and say “vows” you are making them to God, the “nation”, and your friends and family. Thats why alot of people make up their own vows.. but really, if you dont believe in God, you can pretty much do what ever you want.

  8. I have two questions about this post:

    1. Couldn’t the other side as the same, that “it’s my way or the highway”?

    2. Isn’t there more to marriage then just an issue of definition. There seems to be something ethically significant about the union between two people who promise to be together for the rest of their lives?

  9. “1. Couldn’t the other side as the same, that “it’s my way or the highway”? ”

    I am not sure but I get the impression that that is exactly Glenn’s point with regard to pluralism implying that government should get out of the marriage business.

  10. David, yes, the “other side” could say it’s “my way or the highway.” In other words, “the government should define marriage as I do, but if we can’t agree to do that, it should stay out of the matter altogether.”

    And yes, marriage is significant because of the committment being made. But obviously marriage does have a definition. Besides, the govenrment surely isn’t taking anything away from the significance of my marriage by not being involved in it.

  11. Glenn, I’m working on my utilitarian outcomes. Early in your article you argue ‘the government’s not giving me such certification does not in any way undermine my dignity or personhood’ but by not recognising the union you have with your wife would that not create issues where when the government does become involved in your family life? Eg family related welfare payments, child custody if you seperate with your wife, the distribution of a spouse’s estate in the event of death etc. Surely, given these examples, if your marriage is not recognise by the government then your personhood would be undermined?

    Geoff, we have moved on, 21st century New Zealand is a pluralistic society with a diverse range of cultures (unless you live in the rural areas of the South Island-only white people there) so we need to go beyond soley defining marriage as a Christian phenomenon. There are Hindus and Buddists in your country. You state ‘but really, if you dont believe in God, you can pretty much do what ever you want’-yes, relativism naturally flows from giving up belief in the Christian God ;).

  12. Hi Pat

    Currently welfare payments where couples are involved do not require that the couple have a certified marriage, so I don’t see that this should be an issue if such certificates ceased to exist. Ditto for custody issues.

    As far as distribution of goods is concerned, in an ideal world the state would just use my definition of marriage. But since they reject that and therefore should choose “the highway,” they would have to rely on the contents of a will or a contract regarding property. I’m not sure what they currently do with a de facto union ends in death, but the world hasn’t ended in those cases.

  13. Pat,

    Historically speaking, the western definition of marriage is “Christian” (ie, involves God etc).
    I agree, because most people are not Christian, we shouldnt force them to be hypocrites and make vows to someone/thing they dont believe in.
    I recently talked to an agnostic lawyer, who refused to make his “vows” to God to become a lawyer, so instead he made them to crown and country. I commend him, and would rather him make vows to something he believes in, and is committed (and can be held responsible) to, rather than some thing he is not.

    So, what I am saying is actually in agreement with you to some extent. We shouldnt, and can not in todays age, make marriage a “christian phenomena” as you put it. We need to make it sensible and “safe” for people, rather than forcing them into a ceremony that means nothing to them, and carries no authority to them.

    HOWEVER, as a Christian, it is my right, and my duty to point out that God is the source of humanity, and the source of the union between men and women, and people should take that into consideration at ALL TIMES, not just when they “get together”.

    Does it make sense now?

  14. The government can’t keep out of it. Modern marriage also confers legal rights such as the power of attorney and property rights. Why shouldn’t same sex couples have the same rights that hetero couples enjoy?

  15. Neo, I can think of no good reason to believe that the only way for property agreements to exist is via marriage.

    What’s more, I also see no compelling reason to think that ease in property distribution is a greater good, from a pluralist point of view, than state respect for pluralism itself.

    Thirdly, I don’t understand why you have asked “Why shouldn’t same sex couples have the same rights that hetero couples enjoy?” If the government stayed out of marriage they would have exactly the same rights.

  16. I’m also bemused at why government doesn’t just stay out of it. Just have some sort of civil contract that lifts all the legal baggage of civil marriage which any two people can apply for, then leave the recognition issues up to people themselves. Both pro- and anti- gay marriage people can recognize the unions they consider marriage.

    However, this is in some sense a fight which the anti- gay marriage peeps picked. It is they who’ve fought tooth-and-nail (in more than one country) to stop gay couples having these sorts of legal arrangements, and, even if they do to ensure they aren’t called the same thing as marriage. So I do get a bit of schadenfreude from how this is panning out for them.

  17. Glenn, I my second point is saying that it has to do more then just definition. There is something going on in marriage that is not left up to how you define your terms.

    Thank you for your response. I understand your point on the government staying out of marriage.

  18. Thrasymachus: “Just have some sort of civil contract.”

    No. Have nothing. Zip. Nadda. Property agreements can be created by anybody, there doesn’t need to be any sort of civil union to certify a relationship. This is marriage dressed up in another name, and it isn’t honest, in my view.

  19. Glenn

    “No. Have nothing. Zip. Nadda. Property agreements can be created by anybody, there doesn’t need to be any sort of civil union to certify a relationship. This is marriage dressed up in another name, and it isn’t honest, in my view.”

    Either is fine by me. It might however just be more convenient to have a ‘ready made’ set of legal contracts for those wanting to be married (or ‘married’). But I suspect that could be done by private organizations – I have no real commitment to this empirical point. Sadly, it is all a bit moot – both sides want the courts to legislate who wins this battle of the culture war.

  20. I am thinking of a situation in which the grandfather of a friend of mine and his best mate had been inseparable for years. They were both in their eighties or nineties and had looked after each other since they had both become widowed. There was never any suggestion of homosexuality in their relationship. Maybe they were, maybe they weren’t. If you met them you would have been reminded of the two old fellows on the mainland cheese ads.

    Now.. being old, one of them eventually took a turn and ended up in hospital hooked up to a machine. For a start his mate of twenty-five years wasn’t even allowed to see him – not being family. And he had no rights to say anything about his friend’s care or anything.

    Glenn, as you say there are probably other ways to get around property division, next of kin issues and the like. But not all of us are so clued up or want to go through all the rigmarole involved. Not all of us think that deeply, so we employ a government in good faith to protect us.

    What I think is the real crime here is tangling up the idea of a civil union with the debate on homosexuality or marriage. A civil union would be an excellent one-stop-shop way to give rights such as power of attorney and kinship to a trusted friend and to have these recognised by the state.

    If the smear of that debate hadn’t been plastered all over civil unions, and if they had been simply presented as another useful service of the government, then these two poor old fellows might just have gone in and got one (probably not – I know) and been spared unnecessary pain at the end of their friendship.

  21. “Not all of us think that deeply”

    A contract stipulating very basic agreements about property etc is not complex. With freedom comes responsibility. It’s like the guy who crashes a car and says “Gee, insurance is just so complicated and I’m simple folk, so I didn’t get any.” That’s his fault.

  22. I wish I had read this earlier. 5 years ago when it was posted in fact.

    Anyhow Glenn if someone didn’t have such a libertarian attitude do you think some kind of social contract would be helpful for divorce?

    What about adoption? Should the state regulate that? And who would be allowed to adopt?

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