The Defense of Marriage Act and Authoritarian Morality
Walen, Alec
It was a foregone conclusion that the Defense of Marriage Act (DOMA) would become law. A majority in this country believe that gay marriage is wrong and demeaning to the institution of marriage,...
...Nor, however, should the government follow suit...
...But it is simply not true that societies throughout history have always given "special sanction" to marriage defined as a legal union between one man and one woman...
...Among the most profound changes in this century is the extension of greater authority to women, blacks, and all those who had formerly been kept out of power...
...Are we so wise today that we are ready to reject 5,000 years of recorded history...
...RESPONSE: Two reasons are given for why homosexuality is immoral: (1) religion says so, and (2) it is licentious...
...First, child rearing is not the only function of marriage...
...Second, there is the problem of line drawing...
...But that is not the state's business, at least not if it conflicts with basic rights and liberties...
...Second, some homosexuals can commit...
...This is a shorter version of a paper that originally appeared in the William and Mary Bill of Rights Journal...
...Perhaps the underlying idea is that if marriage is not narrowly defined, then it will not be taken seriously, and the family will fall apart...
...In such a world everyone knew what was expected of him or her, and such knowledge was doubtless comforting (for most...
...This analysis fits also with their belief that family and country are on the brink of disaster...
...Surely a child abuser is more likely to do a bad job of parenting than a typical homosexual, yet heterosexual child abusers have a constitutional right to get married...
...If homosexuality were based on perversion or on lust, hedonism, or narcissism, it would be morally undesirable...
...8) The Destruction of Family and Society REPRESENTATIVE HUTCHINSON: "[O]Ur country can survive many things, but one thing it cannot survive is the destruction of the family unit which forms the foundation of society...
...It does nothing to help married couples deal with the problems of violence or drug abuse...
...This fact can be respected, or it can be resented, but it cannot be altered...
...For the new law symbolizes the extent to which we as a culture have yet to come to terms with the ideals of liberty and equality that we espouse...
...I don't expect everyone to agree that homosexual marriages could be a model for heterosexual marriages...
...It flies in the face of our core liberal commitment to the proposition that basic rights and liberties should only be restricted as far as necessary to preserve goods that everyone can agree are important...
...The relevance of these arguments for assessment of the DOMA is clear: the restriction on same-sex marriage is much more sweeping than any of these three, and unlike them is likely to mean that a whole class of people will never be able to find a suitable spouse...
...a) Polygamy has very strong biblical historical credentials...
...Perversion is a harder category to handle because it is unclear what is meant...
...Other animals engage in homosexual behavior, as do members of all human societies...
...What then is the argument...
...On child marriage: first, this restriction is of a piece with others, such as the restrictions against driving, drinking, voting, and so on, all of which are based on the fact that the judgment of children is not fully developed...
...90 • DISSENT...
...Moreover, the Bible says not only "You must not lie with a male as with a woman" (Leviticus 18:22), but "You must not approach a woman while she is unclean from menstruation, to have intercourse with her" (Leviticus 18:19...
...RESPONSE: Painting the opposition as insulting the people who elect you is good politics, but bad history...
...According to Eskridge, "Studies have repeatedly shown that children raised in gay and (especially) lesbian households are as well socialized, as psychologically adjusted, and as capable of forming healthy peer relationships as children raised in differentsex or single-parent households...
...But in what way...
...RESPONSE: Coats's concept of marriage is implausibly narrow...
...It makes it more likely that same-sex couples will break up...
...On incest: the family is an extremely potent power structure and it would allow too much room for improper coercive pressure if immediate family members could marry...
...House Debate, July 11-12, 1996...
...Quoting Eskridge, "In a society such as ours, where men not only hold more economic and political power than women but are also less numerous, the typical pattern would be that a man would take more than one wife but a woman would take only one husband...
...The demise of the old hierarchy has set a challenge for institutions such as marriage...
...6) Homosexuals' Inability to Commit REPRESENTATIVE TOM COBURN (R-OK): "[T]here are studies to say that over 43 percent of all people who profess homosexuality have greater than 500 partners...
...RESPONSE: There are at least three problems with this argument...
...b)Quoting from William Eskridge, Jr.'s The Case for Same-Sex Marriage: "Same-sex unions were an integral part of the cultures of classical Greece and republican Rome, and imperial Rome recognized same-sex marriages...
...4) Jewish and Christian Traditions REPRESENTATIVE ASA HUTCHINSON (R-AR): "[M]arriage is a covenant established by God 86 • DISSENT Authoritarian Morality wherein one man and one woman are united for the purpose of founding and maintaining the family...
...A majority in this country believe that gay marriage is wrong and demeaning to the institution of marriage, and our politicians do a reasonably good job of representing the interests of their constituents, at least on nontechnical matters like this...
...Some homosexuals act on the basis of lust, but so do some heterosexuals...
...We have already looked at the religious argument and found it wanting...
...In doing so, we have the overwhelming support of the American people...
...In addition, this country is based on a separation of church and state...
...The question raised by the preceding review of the arguments in favor of the DOMA is, why do people think there is a deep connection between homosexuality and licentiousness...
...What follows is an examination of the best arguments made by congressional supporters of the DOMA...
...The difference between one spouse and none is, after all, much greater than that between one spouse and more than one...
...RESPONSE: If there is nothing really wrong with child marriage, polygamy, and incest, then we ought to allow them...
...It can only justify denying civil sanction to these marriages if there is a legitimate secular reason for doing so...
...Let's focus first on lust, hedonism, and narcissism...
...The only other argument I can see is that licensing homosexual marriage is licensing homosexuality, licensing homosexuality is licensing licentiousness, and licentiousness will lead to the breakdown of the family, which will cause the breakdown of society...
...And it was a world of unjustifiable privilege and authority for some, along with poverty and powerlessness for others...
...And again, we should not worry too much about the prohibition on incest because the restriction rules out only a few specific people as potential spouses...
...The underlying theory must be something like this: homosexuality is obviously wrong, and one would only engage in it if one were driven by lust or if one substituted some sort of hedonic principle for morality...
...I believe that there are sound reasons that almost everyone would recognize for thinking that child marriage, polygamy, and incest are problematic...
...Of course, same-sex marriages may mimic the sex roles of different-sex marriages, and may suffer from lack of broad social support, but they are more likely to model egalitarian relations...
...But who said the overriding purpose of our lives was to reproduce...
...Yet this sentiment was an expression of bigotry...
...Same-sex partners will be more likely to think about how to share responsibility in an equitable way, dividing it flexibly, aiming to accommodate the real rather than the stereotyped differences in their tastes and skills...
...They have to dismiss it as a crude hedonic principle unworthy of the name of morality...
...It makes it more likely that homosexuals who want to partake of marriage will marry a differentsex person, thereby creating marriages that are highly susceptible to divorce or infidelity...
...Is it the fact that we now tolerate interracial marriage...
...Because of the constitutional problems, we may yet be saved from the law by the Supreme Court...
...One answer is that our culture is permeated by a current of authoritarian moral thinking...
...Same-sex partners will not be as tempted as different-sexpartners to assume that each person should do one kind of work...
...Not all religions agree, not even all mainstream religions...
...Indeed, the Bible says, "If a man lies with a woman while she is menstruating, and has intercourse with her, . . . they must both be cut off from their people" (Leviticus 20:18...
...They cannot abide the thought that their moral view is merely one among many The same uncertainty and social instability that moral authoritarians cite as evidence that we are on the brink of chaos and social collapse, seem to me the growing pains of real moral progress: the growth of political equality...
...First, many heterosexuals can't make serious commitments, yet they are not tested for their capacity to commit...
...But it was a world in which people were forced into roles regardless of how well they fit...
...Some values will flourish more than others in a free environment, while some may need the state to prop them up if they are to survive or remain prominent...
...In the following, all quotations are taken from the Congressional Record for the debates over the DOMA...
...It is the union of one man and one woman...
...No one can reasonably deny that polygamous marriages are marriages...
...Instead, it establishes the moral beliefs of the majority as official state doctrine...
...Finally, since marriage is the institution by which society recognizes and agrees to support a commitment, the problem gay couples may now have in committing should be an argument for, not against, gay marriage...
...But even if most congressional supporters of the DOMA do not really believe what they say, politicians are professional weather vanes—their words are a telling indicator of what people want to hear, and thus of what the people who elect them (theoretically, the majority of us) think...
...Focusing on the congressional debate may seem to mistake political grandstanding for serious argument...
...By allowing same-sex marriage, the state would not thereby favor homosexual marriage or the views of those who support it...
...Marriages in the so-called berdache tradition of gender-crossing effeminate men and 'amazon' women have been documented for dozens of other cultures in Africa, Australia, and Asia...
...Where, then, are the calls for conditioning marriage on abstinence during menstruation...
...It is tempting to say that the DOMA is simply a small setback for homosexual rights...
...Given the problem of exacerbating the inequality of women, it is reasonable to insist that one spouse suffices for companionship and support...
...We don't want to make the benefits of marriage available for any group of people that want to say they are married...
...SUMMER • 1997 • 85 Authoritarian Morality (1) Majority Rule REPRESENTATIVE CHARLES CANADY (R-FL): "Those of us who support this bill reject the view that [choice of a partner of the opposite sex or the same sex is] 'a matter of indifference...
...And same-sex marriages "have been sanctified by representatives of virtually all of America's leading religions...
...But if they think that allowing homosexuals to marry would give some advantage to homosexuals, they are wrong...
...c) Most religions in the West today accept the practice of picking and choosing which of the Bible's injunctions to follow, and many take as their guiding principle the ideal of love...
...None is the kind of fundamental bar that is likely to prevent certain classes of people from ever having the opportunity to marry...
...lesbian couples are in fact not known for their promiscuity...
...Admittedly, neutrality may not have neutral effects...
...Moral authoritarians don't want to accept the moral burden of justifying restrictions on basic rights and liberties...
...And in Tibet, some women marry two or more men...
...7) Slippery Slope: Drawing the Line on Child Marriage, Polygamy, and Incest REPRESENTATIVE STEVE LARGENT (R-OK): "What logical reason is there to keep us from stopping expansion of that definition to include three people or an adult and a child, or any other odd combination that we want to have...
...It would simply de-privilege different-sex marriage...
...On polygamy: first, this restriction can be justified by the strong state interest in promoting the equality of women in our culture...
...Justifying the DOMA arguments is a moral burden that none of its supporters ought to slough off lightly...
...If a particular religion refuses to sanction same-sex marriages, the government should not force it to do so...
...Human beings have always given traditional marriage a special sanction...
...Unless it can be shown that love and commitment are not the only pillars of marriage, and that the other pillars cannot exist between men or between women, or unless there is some social need pressing enough to deny homosexuals a basic right, the DOMA stands as an unjust obstacle to equality...
...If that is the case, then all sexual intimacy that is not directed at reproduction is equally perverse...
...Sexual orientation determines the pool of people with whom one may form an intimate relationship, but it in no way determines the quality of the relationship one may form...
...Second, marriage for different-sex couples does not involve any testing of parenting skill...
...Marriage will not again be stable until it can accommodate the equality of women...
...Since there is no obvious absurdity in same-sex marriage, the at-gument against it must appeal to more substantive reasons...
...Those who embrace traditional values should be free to argue for them in the marketplace of ideas, but they have no just claim for protectionist measures...
...Like styrofoam, something not seen in nature...
...Love and commitment can exist between a man and a woman and it can and does exist between men and between women...
...Marriage is a basic right...
...Moreover, "Seventy percent of the American people are not bigots...
...This would be a catastrophe...
...Second, the restriction is only temporary...
...They see no virtue in a state that is neutral in the face of competing moral conceptions—and this shows why paying attention to the passage of the DOMA is important...
...But it represents more than that...
...But the current state of the law, perpetuated by the DOMA, does not respect the view that they could be...
...But that is not my concern here...
...Senate Debate, September 10, 1996...
...In every major religion in history, from the early Greek myths of the 'Iliad' and the 'Odyssey' to the oldest writings of the Bible to the oldest teachings of civilization, governments have recognized the traditional family as the foundation of prosperity and happiness...
...3) Universal Exclusion of Anything But Traditional Marriage SENATOR PHIL GRAMM (R-TX): "[T]he traditional family has stood for 5,000 years...
...b) As already noted, the Bible does not represent marriage as necessarily monogamous...
...If we, as a society, cease to endorse their principles, the result will be a moral free-for-all, chaos without norms...
...Insofar as this has any plausibility, the relevant narrowness has to do with the seriousness of the commitment...
...Love and commitment are essential pillars of marriage...
...Rare indeed was the member of Congress who expressed concern over the fact that the DOMA's sole aim is to perpetuate the unequal treatment of homosexuals by defining marriage for the purposes of federal law as "a legal union between one man and one woman...
...They are so certain and dogmatic about their moral convictions that they cannot see other points of view as reasonable alternatives...
...The General Assembly of the Union of American Hebrew Congregation (Reform Jewish synagogues) adopted a resolution in 1993 advocating legal recognition of same-sex unions...
...Arguments After examining the arguments given by congressional supporters of the DOMA and showing that none of them carries the necessary moral burden, I will try to answer the following question: if there is no way the DOMA can be morally justified, why all the righteous talk in favor of it...
...This is so far from plausible, however, that one has to wonder why it has a grip on people...
...Seventy percent of the American people are not mean-spirited, cruel, and hateful...
...5) Parenting of Children SENATOR ROBERT BYRD (D-WV): "If samesex marriage is accepted . . . America will have said that children do not need a mother and a father, two mothers or two fathers will be just as good...
...Third, where is the evidence...
...As Representative Patrick Kennedy (D-RI) said, the debate over the bill "is really about a simple question, a question of equal rights...
...At bottom, it represents a failure to live up to the liberal commitment to protect basic rights and liberties, a failure to advance the cause of political equality, and a retreat into moral authoritarianism...
...88 • DISSENT Authoritarian Morality (9) The Immorality of Homosexuality REPRESENTATIVE BOB BARR (R-GA): "The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundations of our society: the family unit...
...Third, presumably only those same-sex couples that really want to commit would seek to be married...
...Breaking down the hierarchy that defined that world represents profound moral progress...
...The nature of the attraction and the reasons for forming relationships are essentially the same for homosexuals and heterosexuals...
...That leaves the argument based on licentiousness...
...Ultimately, this is no different from the establishment of a state religion...
...RESPONSE: There are at least three problems with this argument...
...Moreover, since many people think that same-sex couples can marry, nothing is gained by insisting that the definition of marriage does not allow for that...
...What they believe is, is [sic] that homosexuality is immoral, that it is based on perversion, that it is based on lust...
...But as we have seen, the idea that the commitment must be serious is in no way incompatible with extending the right to marry to same-sex couples...
...They cannot recognize as morally serious any position that values homosexual love as highly as heterosexual love...
...If it were, then we could deny heterosexual couples, one or both of whom is infertile, the right to marry...
...Muslims from the time of Mohammed to the present allow men to marry more than one wife...
...Is it that we were given a sex drive in order to reproduce...
...By this I mean that many Americans think that if the state does not enforce their values, disaster will follow...
...This change has necessarily been very SUMMER • 1997 • 89 Authoritarian Morality disruptive to the norms of the old hierarchical order according to which women ruled over children, men over women, and white men over black people...
...I accept the premise that licentiousness is bad...
...Even if these traits were more often found in homosexuals than heterosexuals, it is simply false that homosexuality is essentially based on any of them...
...Accordingly, again quoting Eskridge, "the Unitarian Universalist Association now affirms the growing practice of some of its ministers of conducting services of union of gay and lesbian couples and urges member societies to support their ministers in this practice...
...Yet anything more generous than this lapine morality, such as a morality that praised love and affection in their own right, would have another way to make sense of nonreproductive sexual activity—it can be a profound way of showing love and affection...
...I want to argue that denying homosexuals the right to marry whom they love is morally unjustifiable...
...REPRESENTATIVE COBURN: "I come from a district in Oklahoma who [sic] has very profound beliefs that homosexuality is wrong...
...RESPONSE: How does disallowing same-sex marriage keep families stable...
...There are both constitutional and moral problems with this inequality...
...But the connection between the goal and the suppression of homosexual unions is so dubious that it cannot possibly support the sweeping restriction on all such unions...
...My answer is that those who share this belief are moral authoritarians in the following sense...
...it provides no resources for education or counseling...
...If that is what is meant, it is false...
...Good start, but that doesn't show that we're all better now...
...And in the recent case in Hawaii of Baehr v. Miike, the judge, after hearing a number of experts for both sides, similarly held, "Gay and lesbian parents and same-sex couples can provide children with a nurturing relationship and a nurturing environment which is conducive to the development of happy, healthy and well-adjusted children...
...What makes the majority in America today suddenly immune from bigotry...
...They see society as either for them or against them...
...2) The Essence or Definition of Marriage SENATOR DANIEL COATS (R-IN): "The definition of marriage is not created by politicians and judges, and it cannot be changed by them...
...Jacob, son of Isaac, married two wives, Leah and Rachel, and had children though them and their handmaids...
...It seems to convey the idea that homosexuality is in some way unnatural...
...a) One of the foundational commitments of this country is the separation of church and state...
...This is a morality for rabbits, not humans...
...If they have that right, then it makes no sense to deny it to same-sex couples...
...During the Middle Ages the Greek Orthodox and Roman Catholic Churches celebrated same-sex unions, as did imperial China...
...For most of our two hundred year history, the clear majority of people in this country thought it was immoral for whites and blacks to marry...
...We still wouldn't SUMMER • 1997 • 87 Authoritarian Morality dream of prohibiting athletes and movie stars from marrying...
...The question is, what reason is there to think that homosexuality fits these descriptions...
...They are qualities that do not discriminate on account of gender...
...Appeals to majority consensus do nothing to establish the justice of that consensus...
...Thus it is to the moral status of homosexuality that we must turn...
...Seventy percent of the American people are not prejudiced...
...If, however, there is something wrong with them, and the restrictions are not out of proportion with the problem, then there is no slippery slope...
...Solomon had seven hundred wives and three hundred concubines (granted this was considered a sin, but because the wives were foreign, not because they were so many...
...The Society of Friends leaves all issues to congregational decision, and thousands of same-sex marriages have been sanctified in Quaker ceremonies since the 1970s...
...For this purpose, homosexual marriage, rather than being a threat, may actually provide a model...
...Helping families provide stable homes for children is doubtless an important, generally recognized social goal...
...Fourth, such statistical probabilities clearly could not be used to prohibit marriages between a man and a woman...
...And although a majority in America is currently against same-sex marriage, that majority is nowhere near the general consensus on the importance of such values as love and commitment...
...Suppose, for example, it turned out that a significant percentage of professional athletes and movie stars have more than 500 partners...
...Some homosexuals are hedonistic and narcissistic, but so are some heterosexuals...
...They base that belief on what they believe God says about homosexuality...
...RESPONSE: Granting the premise that marriage involves a serious commitment, this argument carries no weight...
...Concepts do what people want them to do, and insisting that one has insight into the pure essence of a concept is only a way of obscuring the background presumptions and purposes one brings to a debate...
...I do not think so...
...Given their aim of perpetuating unequal treatment of homosexual couples, one can assert that the DOMA's supporters are not bigots (or unduly tolerant of and deferential to bigots) only if they give the new law a substantive moral justification...
...But just as important, restrictions on these kinds of marriages are all fairly limited in scope...
...RESPONSE: If this argument for humility were at all grounded in history, it would be worth taking seriously...
Vol. 44 • July 1997 • No. 3
