Before I begin, I will make an upfront admission that I can certainly understand the reasons why a significant number of people believe gay marriage should be affirmed by the state. John Stuart Mill’s arguments regarding liberty make enough sense to cause me to look skeptically at any action or policy of the government which would infringe on human freedom without a corresponding argument for restricting a harm.
However, I am extremely troubled by the recent trend of courts finding legal policies against gay marriage irrational and only supportable as a matter of religious belief. It seems to me that there are ways one could find that the traditional view of marriage is rational. I am focused on this issue because I was taught in law school that the court would essentially never overturn any law for failure to meet rational-basis scrutiny. The fact that courts are now overturning laws on exactly that basis leads me to believe that jurists think there is no rational way to think marriage should be confined to male-female pairings. That way of thinking is, I believe, very dangerous to the notions of self-government and republicanism.
Thinking in terms of what is rational and what is not, I would like to set forth what I think should be considered a rational account of why marriage should remain a male-female arrangement. My own view might be different in important ways from this one, but I am trying to present something that is non-religious in nature and which I think should be capable of being accepted as rational by any person. Note: “rational” does not mean that it convinces you. It merely means that you could see the argument as a position a person could hold without being, basically, crazy.
So, here is one rational account of why marriage should be confined to opposite sex couples. As you read, keep in mind that you need only find the account rational (i.e. not crazy) rather than truly persuasive.
Men and women are obviously complementary in nature. This is not a matter of holy writ. Without the man and the woman, it is not possible to produce children. Without the ability to produce children, the political community has no future whatsoever. It will die out like the Shakers, who chose celibacy. This interest in the future is clearly a political interest since the political community emerges from families. Families form villages. Villages form towns. Towns grow into cities. And so on. Male-female marriage is the basis of the political community. For that reason, it is obviously rational for the political community to take an interest in affirming, sustaining, and protecting male-female marriage.
Same-sex pairings are not procreative. The answer will come back that many heterosexual marriages are not procreative. That is true, but the marriage is still rooted in the complementarity of the sexes and the complementary sex act. The man and woman share an intimate relationship based on the way their bodies are made to fit together. You could say God made this design. You could say it emerged from evolution. Regardless, it is clear that the male sex organ and the female sex organ work in harmony in a way that the male sex organ and a non-sexual male organ do not. This biological fact is the reason for the long existence of marriage between men and women. Marriage would not exist without it.
Homosexuality was once considered a disorder. Looking back on those who thought so, can we say with great confidence that their conclusion was invidious or irrational? Or was it to some degree a reasonable position to take considering that the desire to engage in sexual stimulation (not intercourse as that is impossible) with members of the same sex is highly atypical for human beings and, biologically speaking, does not make sense? And there is little question of that. Biologically speaking, the act of a man attempting to have sex with a man or a woman having sex with a woman makes no sense at all.
There are a number of atypical behaviors to which some human beings appear to be predisposed. We do not need to make a list, but I am sure we can agree that such behaviors exist. Our reaction to these atypical behaviors is mostly to accept without having to positively affirm.
Given these realities, it is not surprising at all that the history of marriage has been the history of men and women marrying each other. Marriage is a direct consequence of the biological complementarity of the sexes. While we should not positively inhibit same-sex pairings, we should not give those pairings the same status as male-female marriage.
Based on what has been written above, is it clearly irrational for the government to favor the traditional and biologically sensible form of marriage? One might characterize these remarks as insensitive or unpleasant or out of fashion, but would it be fair to say that they are irrational? One may easily disagree, but would you regard these remarks in the class of comments claiming the moon is made of green cheese? Could you not easily say, “I disagree with what this person has said, but it is a rational reason to oppose gay marriage. If I have a vote on the matter, I will cast my vote against this position.” To do THAT, to cast a vote in favor of gay marriage, is a fundamentally different exercise than to do what courts have done by simply ruling that the person or institution opposing gay marriage is irrational.
What we are talking about is a few different arguments, some stronger and some weaker, in contest over a social innovation with potentially large consequences (frankly, we just don’t know what they might be). I do not see what many courts see, which is one highly logical and rational argument squaring off against one that is irrational, superstitious, and religious. If the standard is merely that laws confining marriage to opposite sex couples merely need be considered rational by some low standard of rationality, then it seems to me that the courts have decided wrongly.
The courts do not have the privilege of filling the law with content. Marriage laws are already very full of content. The content is centered around men and women marrying. There is a very simple way of changing that content. It involves making arguments in the public square and voting. Such a process is the natural course of democracy and has the advantage of not turning a group of lawyers into sages capable of determining the moral (or rational) content of law.
Hunter Baker 
Based only upon what I’ve heard from news reports it appears unclear whether the 9th Circuit actually relied on the rational basis analysis in the present case. Notwithstanding this, let me pose a lawyer’s response to your post.
Isn’t the real issue the way it was coined by Chief Judge Kaye of the New York Court of Appeals, to wit:
“. . . whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State’s interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.”
To me, this is the problem. In the policy domain on which the courts have now set sail, cutting edge social engineering, it seems to me that most arguments concerning advancing governmental or societal goals will be nothing but profound speculation and probably religiously based speculation at that. It brings to mind the difficulty of explaining the economic ideas of “hidden opportunity costs” and “unintended consequences.” Any idea that denying one group of citizens the right to marry without at least describing the rational basis for believing that the legitimate and lawful interests of those who may lawfully marry or society or the government will be advanced thereby seems doomed to fail under an unbiased judicial rational basis review (although currently this question boils down to what will Justice Kennedy think it won’t always be that way).
I hope you will forgive me for characterizing your rational basis argument as such but it seems essentially to be that because of the gender complementarity of men and women that they should have a special designation for their union setting it apart from all others. But why are their interests impaired or advanced by either allowing or prohibiting the marriage of same sex couples? Without resort to religion what is your argument for that? I may be missing your point and if so, I’m sorry.
Proverbs 14:12 There is a way which seemeth right unto a man, but the end thereof are the ways of death.
Michael, the biological complementarity of men and women is the core of the argument being made here. But that doesn’t seem like a small thing to me. It is a most fundamental fact. We don’t have marriage because people develop crushes. We have marriage because men and women paired off and had babies. The institution is derivative of the complementarity.
So, how we can have all this talk about making a special designation for the type of thing male-female marriage is when it is in fact THE THING ITSELF?
I am not trying to convince anyone with this argument so much as I am trying to show that it is perfectly rational to think that marriage should be male-female in nature. To me, the complementarity argument achieves that goal and courts should stop saying there is no rational reason to confine marriage to men and women. If courts can say what is or is not rational largely by dismissing a position with which they disagree, then we no longer have self-government.
I completely agree with your final point.
Marriage, whether or not people believe it was instituted by God, has stood the test of time as a positive institution for a host of reasons which we could both explain and a great many more reasons that neither of us will ever even know. The very idea that the Supreme Court has decided that it should venture into these fundamental questions is astounding to me. It always has been. I remember as a young law student reading con law cases (in the mid 70’s) which were different than others, filled with social, economic and other non-legal concepts. Questions of fundamental social engineering should be, like political questions, off limits because the courts themselves see them as unsuited to their station. But one thing about judges (and everyone else) is that they nearly never voluntarily surrender power once they have it. Judicial self-discipline, avoiding being drawn further into this arena, is what is necessary because passing laws restricting the jurisdiction of the federal courts would be like ‘sowing the wind.’ Hosea 8:7.
I know that you, as a younger and more educated man, must be more hopeful than I am about the prospects for self government in our future. After all, why would you have taken the time to write The End of Secularism otherwise?
I definitely have hope. But my efforts are not motivated by probability of success. I feel that I am required to make the effort regardless of the result.
I’ve lived a professional life filled with rational calculation, never betting on people to change their ways. That said, I also believe that, “. . . with God all things are possible.” Mt 19:26. I won’t give up either.
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This entire piece is predicated on the idea that by legalizing gay marriage, traditional procreation will cease at some point as a result. So, no this is not rational, this is just as crazy and bigoted as every other attempt to prevent freedom and equality for gays.
No, jrg3000, you’re wrong. The piece says no such thing, nor is it predicated upon such an idea. All it suggests is that the institution of marriage, itself, is predicated upon the complementarity of the sexes, which is a biological fact. It is not irrational to understand the institution legally in the same way it came to be understood culturally. Now, you may have good reason to re-evaluate that understanding. You may even be able to argue that it is unfair to understand marriage in this way. But you cannot argue that it is irrational to understand it this way. Rationality simply means that you can make sense of an argument, not that you find it convincing or satisfying.
Excellent blog post. I stumbled upon this from Jonathan Morrow’s Think Christianly blog and quickly added your blog to my Google read list.
I appreciate your simple yet thoughtful and elegant elaboration on this topic, especially from a legal standpoint. I especially enjoy this nugget: “Marriage is a direct consequence of the biological complementarity of the sexes. While we should not positively inhibit same-sex pairings, we should not give those pairings the same status as male-female marriage.” I’ve been trying to wrap my head around this emotional topic for years. I can understand (only from the perspective of good and fair public policy) why some might argue that the “right” of heterosexual couples to marry should also be one the state provides to same-sex couples. But I’ve never been able to find a good reason to abolish the fact that marriage = 1 man + 1 woman. Who has the right to say otherwise? Are judges allowed to rewrite the dictionary?
On a more serious note, should the state be in the business of “marrying” people and offering benefits of such an institution as a result, anyway? Should we not leave this to be a free expression of individuals in whichever manner they choose? ‘Cept, I can’t get around it (male/female marriage) being the cornerstone to any village/town/city/state/country. But if we say hetero marriage needs to be protected due to the procreative act, on what basis do we not allow polygamous marriages (on, simply, a rational basis)?
After years in the workforce as a communicator, I am contemplating going back to school to get my J.D. I have a strong desire and will and feel God calling me to use the gifts and wits he’s given me to pursue crafting and working for good laws and good public policy. If you have any suggestions or direction to offer, I’m all ears.
Craig, law school is awesome. Crank out a really great LSAT and find a way to get some scholarship money out of somebody!!! I loved it. You have to like a highly competitive situation or you will be miserable.
I’m glad you perceive the fairly narrow nature of the point I am making. Judges are not the arbiters of the rational. Traditionally, they have gone to great lengths not to discount laws on that basis. They need to stand back and let democracy do its work here.