|National Interest editor
John O'Sullivan addressed whether legal recognition of gay marriage
Posted January 21, 2004
O'Sullivan Predicts Courts Will
Establish Gay Marriage
Gay marriage is likely to become legal because of court rulings rather
than legislation, National Interest editor John O'Sullivan
said Jan. 19 at the Law School, and the effect will be to further weaken
the social authority of the institution. Sullivan joined University
of Minnesota law professor Dale Carpenter and Jeffrey Ventrella of
the Alliance Defense Fund for a panel discussion in Caplin Auditorium
titled “Gay Marriage: Fundamentally Right, Fundamentally Wrong, or
Fundamentally Irrelevant?” Law Professor Julia
Mahoney moderated the discussion, which was sponsored by The
Federalist Society, the Lambda
Law Alliance, and the Law
Ultimately the issue comes down to pragmatic choice, asserted Carpenter,
who made the case for gay marriage. “Given that they exist and aren't
going to go away, what's to be done with gay people? Are they going
to be marginalized and alienated, or included in American life?” In
order to deny gays the right to marry, opponents must prove what harm
would come from it, he said.
|Law professor Dale Carpenter said
opponents of gay marriage should prove what harm could come from
The definition of marriage has adapted over time—allowing women
to own property, for example—and “marriage has survived all changes,” he
said. Meanwhile, he pointed out, the institution is losing cultural
force because of other social developments, including the 50 percent
divorce rate, one-third of births being out-of-wedlock, and some $93
billion in unpaid child support payments. “None of those are caused
by gay couples,” he said.
Gays are fully capable of meeting the two essential functions marriage
provides for, caretaking of spouses and providing a stable environment
for rearing children, Carpenter said. Gays are building families now
through adoption, prior marriages, artificial insemination, and surrogacy,
all legal avenues, although marriage, which he asserted would give
gays an incentive to fidelity and monogamy, is still not available
to them. Besides denying gays the ability to marry the person they
love, the prohibition harms the institution by causing policymakers
to find ways around it, such as domestic partnerships and civil unions.
These parallel forms show that “marriage is gradually being knocked
off its pedestal” as a consequence of traditionalists' opposition to
extending it to gays.
|Jeffrey Ventrella argued that marriage
should remain as a union between one man and one woman only.
Challenges to the definition of marriage are nothing new in Western
culture, argued Ventrella, but there have been episodes in which the
law brought social developments back in harmony with the fundamental
structure of marriage as a committed union between one man and one
woman. This structural definition has been a cultural pillar of the
West for centuries and is well established in American law and U.S.
Supreme Court rulings, he said. In Loving vs. Virginia, for
example, the famous case in which the Court ended laws against miscegenation,
the understanding that race is a cultural construction was acknowledged
and racial barriers to marriage were swept aside, he contended, but
the structure of one man joined to one woman remained serenely undisturbed.
O'Sullivan, whose task was to assess the social relevance of gay marriage,
admitted his personal preference for traditional definitions, and besides
predicting that court rulings would establish gay marriage “relatively
soon,” said that outcome would accelerate the institution's social
decline. The public simply won't show the same support for gay marriages
that it has shown for traditional marriages, he said, and the result
will be a broad social weakening in the institution altogether.
Churches should sever their connections with civil marriages, he urged,
and no longer act as if the state shared their assumptions about how
moral behavior is promoted. “The state no longer supports traditional
values,” he said. “Actually it's radical” in its policies on divorce
and abortion in recent decades. “Gay marriage would be the last straw
for churches,” he said. “They will have to run their own church marriages.” He
also suggested as a legal reform the codification of “covenant marriages," which
he explained as “what we would have traditionally just called marriage,
a union that is very hard to get out of.”
He suggested that conservatives back an expanded concept of civil
partnerships that would formalize relationships that were not predicated
on sexual relations. Thus there would be three forms of union: civil
marriage, church marriage and civil partnerships, which could address
needs of individuals besides gays as well.
O'Sullivan said some gay advocates are pushing for gay marriage because
they think it will “show complete social acceptance—equality—for gay
In rebuttals to the presentations, Carpenter faulted Ventrella for
focusing on the matter of definition, what Ventrella had referred to
as the structure of marriage. “There is no essential definition of
marriage,” Carpenter said. “This argument is not helpful in debate
because it is the definition itself that is being debated. We need
other sorts of arguments.” He agreed with the other panelists that
it would best if gay marriage was not imposed by the courts.
Ventrella countered that, “You have to justify the abandonment of
the existing definition. On what principle, not what pragmatic consideration,
would we jettison the obstacles to gay marriage?”
He cited research on gay relationships in the Netherlands and San
Francisco that suggested that ostensibly steady and committed gay relationships
suffered from high rates of infidelity and were also relatively short-lived.
Carpenter answered that the methodologies of those studies have been
condemned and that the institution of marriage has a civilizing affect. “Moral
faithfulness is what civilizes people,” he asserted.
O'Sullivan, relating an anecdote from a similar panel he appeared
on in the 1990s, recalled how a female panelist had answered the same
point saying, “It's not marriage that civilizes men, it's women.”
“Marriage is the foundation of a decent society,” he continued. “If
we change this institution we would be doing it to satisfy a minority
of a minority. We all know gay people and how many of them, until now,
have been agitating for the right to marry?”
Carpenter, returning to his pragmatic case, said the children of gays
should have the protections of marriage. He earlier noted that state
and federal laws confer some 1,000 advantages on married couples. He
repeated that no case had been made for what plausible harm could be
caused by gay marriage or how it would come about.
O'Sullivan said that the debate over extending marriage to gay relationships
demonstrated how weak the institution had become. “Bring it in and
watch it get weaker,” he said.
• Reported by M. Marshall