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.