Marriage for (and against) Dummies

I'm working on the section of (what will hopefully be) my new book, Was It Morally Good For You, Too?: A Guide to Rational Ethics in Sex, Politics, and Other Dirty Words to be called "The Ins and Outs of Sexual Ethics." Comments and criticisms gratefully accepted.

There is, perhaps, no subject that provokes worse moral discussions in American culture than sex. As a culture we have no clue about how to talk about that part of every human life that ought to be the source of joy, passion, and intimacy. Instead we are presented with a classic case of false alternatives where we seem to be forced to choose between complete sexual abstinence except for the few instances of intentional insemination, on one hand, and whatever-floats-your-boat, anything goes, free-for-alls, on the other. And then mixed in with all of this are questions about marriage, as if marriage had anything to do with sex. Marriage has several distinct meanings which are conflated in our social conversation, often to hide a distinctly political agenda. If we want to talk coherently about the ethics of marriage, we need to make sure to clearly work out what these meanings are and keep them separate.

Some of the views we are arguing against often contend that sexual ethics are inextricably tied up with the notion of marriage. Marriage on some of these views is a sufficient condition, a sort of "have sex free" card, and on others it is merely necessary for ethical sex – you still can't wear a rubber thingy on your weewee. In order to set out the relation between sex and marriage, we first have to understand what marriage is.

This is not as easy as it might seem because there are several different meanings to the word and what often happens in our sloppy discourse about the topic is that people knowingly or unknowingly slide back and forth between different meanings when it suits their political purpose.

One sense of the term relates to a religious rite. Religions perform marriage ceremonies and those so wedded are seen within the faith community as having entered an special sort of relationship with one another or a three-way with God. This ceremony usually comes with rights and responsibilities on the part of the partners; sometimes symmetric, sometimes not depending on the faith and brand of theology within the faith.

But "marriage" has meanings beyond the religious rituals associated with it. It is also a social status. Married couples are seen by society as different from unmarried couples. There are non-religious, social expectations attached to being married, these of course, vary with the time and place, but we can think of sexual exclusivity, shared responsibility in the household, and the right to constantly bitch about your spouse's mother (For the record, I have a wonderful mother-in-law). These expectations may or may not be included in any given religion's picture of marriage, but hold across the society as a whole. What is expected of a wife or a husband, even for those with deep faith, comes from social structure as well as religious institutions.

In addition to the religious and the social notions of marriage, there is the legal sense which is completely distinct. Under this notion, marriage is a contractual arrangement between two people to adopt a legal status which confers upon them certain legal rights. In fact, the General Accounting Office, the investigative arm of the US Congress, issued a report in 2004 that stated that there are 1,138 such rights, privileges, and protections under the law afforded to married couples. We do tend to couple off and in doing so we arrange our lives so that it makes no sense to consider the couple to be separate individuals in certain legal contexts. There isn't my money and my wife's money, there is only our money. There isn't my house and my wife's house, only our home. As a couple we function in certain ways as what Hobbes' called "an artificial individual." It makes sense that we should file our taxes as a single entity and that inheritance rights should be implied.

Because there is no distinguishing between a couple in terms of ownership of property or guardianship of children, or authority on matters germane to their life, the married couple makes decisions as a unit and thereby assumes responsibility for those decisions as a unit. For this reason, they are given the special status of being able to speak for each other. This means that power of attorney in cases where one spouse becomes incapacitated automatically rolls over to the other spouse. If your married partner is in an accident, you make choices related to his or her care (even if those choices are disliked by an elected official who happens to be physician who makes a diagnosis from a video tape which disagrees with specialists who have actually been in the same room as your wife).

Notice that none of this has anything to do with having sex. Marriage, in this sense, is a legal status based upon joint ownership, responsibility, and decision-making. This is the only sense of marriage that the state has any jurisdiction over. It is a status granted by, defined by, and controlled by the state relating to matters of the government for legal purposes. State-sanctioned marriage has nothing to do with the morality of any given sexual activity engaged in by the married couple. Of course, we hope that all married couples have engaging, enriching, and enjoyable sex lives. Life partners make the best lovers. There may even be social or religious expectations relating marriage to sex, but these are entirely independent of marriage as a legal question.

For this reason, the contemporary debate over gay marriage is deeply flawed. The question at hand is purely one of assigning rights. The only version of marriage at issue is legal marriage. Put clearly, this is a question of rights, and anyone who opposes gay marriage is saying that there is a group of honest, law-abiding, tax-paying citizens of this nation who should be deprived of rights, privileges, and responsibilities under the laws of the land simply because they do not like who those people have chosen to make their lives with.

The appeal to religious definitions is a red herring. No one would force any church, synagogue, mosque or temple to marry anyone in their faith that they chose not to. If gay marriage was legal and a religious organization did not want to perform a religious ritual for a gay couple, they are perfectly free to decline. If your theology declares that in the eyes of your deity no same-sex couple can be joined in the bonds of holy matrimony, those are your metaphysical postulations, have at 'em. But the question of gay marriage has nothing to do with theology. It is a legal question of rights and rights only, and anyone who opposes gay marriage is saying that there is a group of honest, law-abiding, tax-paying citizens of this nation who should be deprived of rights, privileges, and responsibilities under the laws of the land simply because they do not like who those people have chosen to make their lives with. In my book, that's what we simply call biogtry and that is wrong.