O'Sullivan Predicts Courts Will Establish Gay Marriage

January 21, 2004
National Interest editor John O'Sullivan addressed whether legal recognition of gay marriage was irrelevant.

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 Christian Fellowship.

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 it.

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 relationships."

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.

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