"This is the generation of the great LEVIATHAN, or rather, to speak more reverently of that mortal god, to which we own under the immortal God, our peace and defense." -Thomas Hobbes: Leviathan
I realise that such a civic position would not be very popular amongst many Christians in the circles I move in, however I wish to argue in this post for the position that there is really no “moral issue” at stake in the political and legal question of gay “marriage”.
No I have not lost my mind nor gone liberal or whatever. Yes, I still think that gay “marriage” makes nonsense of the concept, is irrational and contradicts the will of God, etc, etc, etc. However, my main claim would be that it is not a battle worth fighting because there is nothing practically or morally substantive at stake.
Laws as Symbolic Expression of Values versus Laws as Function
Westerners in general are very romantic. They tend to view laws as expressions of values, ideals or moral character rather than instruments aimed at achieving certain objectives or as instituted to perform certain functions. Rather than asking what role marital laws play or what function it serves, they begin with exalted principles or ideals like “love”, “equality”, or “what marriage really is”, like some platonic form, or “moral order”, before deducing its implications for civic laws. Thus the debate tend to address primarily the symbolic meaning of marital laws as expression of these ideals and values rather than its function, collapsing it into questions of “what is marriage”, blah blah blah, rather than “What is the function of marital laws? What are its objectives? What is the point of state regulation of marriage?”
However, if it is merely an argument over words, then changing labels or conventional use of words will not change realities. I can call a duck a “chicken” but it would still have a bill and not a beak. Changing words will not change social phenomenon or practice or in general, swapping labels do not alter realities.
However it would be objected that those on the pro-gay marriage side of the debate is attempting to change a practice by having the laws about marriage apply to gay couples. I would however argue that even if gay couples come under those laws, the marital laws simply cannot perform its function for them by the very nature of homosexual coupling, there would simply be no change in practice. To this argument I now turn.
The Function of Marital Laws
The problem about the gay marriage debate is the failure to distinguish between questions of the social phenomenon and human practices associated with marriage as a pre-political civic institution, and the function and purpose of state/legal recognition of this pre-political civic institution. The failure to distinguish the two question have often lead to confusing and endless debate over “what is marriage” and all that.
However if we set aside the question of marriage as a pre-political social/empirical phenomenon and focus upon the question of the function and purpose of state recognition of the marriage institution, the absurdity of gay marriages becomes evident at once.
One of the primary functions of a marital contract is the creation of sexual obligations and the regulation of sexual behaviour, i.e. no adultery, etc, as well as obligations to remain together through the use of state coercion or incentives, e.g. disincentives in the form of unfavourable divorce settlements for faulting parties, etc. However we must note that with the advent or no-fault divorces, the marital obligations has effectively become an illusory promise, a legal term referring to a contract which does not as a matter of fact contain any real promises or obligations. As this blog puts it most expertly:
Every state currently allows some form of “no fault” divorce – divorce not based on any wrongdoing of a party, but simply because the parties claim they don’t want to be married anymore. Even though the couple may “vow” to remain together until one of them dies, everyone knows these vows have no legal or real-world effect. The marital “contract” is not a contract at all.
Imagine a regular legal contract in which either party could end the agreement by saying he didn’t like it anymore. Could the purposes of contract law be served by such a contract? From a law and economics point of view, such an “if-I-feel-like-it” contract would not support the reliability of contracts, and would require an inefficient level of hedging. The legal term for such a contract is an illusory contract – one that doesn’t have any legal effect, of which the legal system will take no notice.
Marriage once did have a legal effect – once married, parties could not divorce without a really good reason (physical cruelty, desertion, or adultery). Not coincidentally, marriages were much more likely to be reliable lifetime partnerships. In addition to the legal strictures surrounding marriage, social groups essentially forced couples to stay together or risk social death.
With the nationwide adoption of no-fault divorce and the elimination of the social stigma of divorce, the nature of marriage changed from a genuine contract to an illusory contract. Marriage stopped being the reliable, socially enforced lifetime partnership it had been for generations.
The fact of the matter therefore is that marriage laws has not been able to perform its function for a very long time and it is therefore pointless to argue about to whom this essentially meaningless legal facility is extended to.
Why Homosexual Coupling can never Benefit from Marital Laws
You might then say all right, so in the Western world at large marriages has ceased to perform its function as reliable legally enforced lifetime partnerships. But supposing we restore the regular enforcement of marital contracts, why can’t homosexual couples not benefit from these marital contracts?
The reason is very simple. There is simply no definition of adultery or consummation for gay marriages as Britain discovered to its chagrin when it had same-sex marriages:
…Civil servants, confronted with the embarrassing task of working out what defined the consummation of a homosexual relationship, faltered. Since homosexual acts have no existential purpose and no procreative result, consummation is a meaningless concept. From this it followed that the Government could come up with no definition of adultery in a homosexual marriage. A law designed to be equal, is not. Under the Bill, non-consummation will not be grounds for divorce in same-sex marriage. Nor will adultery.
By accident, then, the Government is introducing, for the first time, a definition of marriage which has no sexual element. Yet it refuses to face the logical consequence of this surprising innovation.
Of course if gay marriages have no definition of adultery or consummation then it cannot, in any sense of the word, perform its function in regulating sexual behaviour or enforce sexual obligations. What we have essentially is a government registered friendship between two people. (I articulated a much more detailed argument in this post.)
Why Lose your Heads over Registered Friendships?
Given the fact that the sexual component has disappeared completely from all marriages which accepts same-sex marriages, then, despite the misleading name, what we have is not gay “marriage” but simply a registered friendship with the government. A very odd legal institution at that but which by itself is completely devoid of all sexual element.
So why should we bother ourselves with registered friendships? If people want to register their friendships, for whatever material or economic purpose, such as this New Zealand heterosexual best mates who had their friendship registered, or entered into a “marriage”, to win a trip to a rugby world cup? If two friends of the same sex, heterosexual or homosexual wants to get some housing benefits or whatever, why not let them get “married”?
So really, there’s nothing to worry about here. No moral issues are at stake, the reality of marriage remains what it is. What has simply happened is that marital laws has simply ceased to perform any actual functions for marriages but has merely become registered friendships with the government.
Conclusion: What Sensible People should be Worried about Instead
Given that the law has ceased to provide any material or coercive enforcement of marital obligations, the question therefore facing those of us who still believe in marital obligations is how to bring back this function. I have outlined a few suggestions here where a pre-nup could bring back “fault” considerations in the event of a divorce where the faulting party would get nothing, etc.
My fundamental point however is that gay marriage is not anything to get worked up over for changing the referents of words themselves would not change the realities to which they used to refer.
To that end, let me commend the wisdom of a certain Chinese philosopher:
Tao is the beginning of the myriad things, the standard of right and wrong. That being so, the intelligent ruler, by holding to the beginning, knows the source of everything, and, by keeping to the standard, knows the origin of good and evil. Therefore, by virtue of resting empty and reposed, he waits for the course of nature to enforce itself so that all names will be defined of themselves and all affairs will be settled of themselves. Empty, he knows the essence of fullness: reposed, he becomes the corrector of motion. Who utters a word creates himself a name; who has an affair creates himself a form. Compare forms and names and see if they are identical. Then the ruler will find nothing to worry about as everything is reduced to its reality.
-Han Fei Zi: Chapter V. The Tao of the Sovereign