Professor of Law, Pennsylvania State University, Dickinson School of Law firstname.lastname@example.org. My thanks to the participants of Capital University Law School's Symposium on Same Sex Marriages, Domestic Partnerhships, and Civil Unions, to whom an earlier version of this paper was presented on March 3, 2001. Thanks also to Gary Gildin (Penn. State) for incisive comments on an earlier draft. Special thanks to my student research assistant on this project, Emily Atwood ('03), for her excellent work.
In his correspondent's reconstruction of the debates of the Constitutional Convention in 1787, Jeffrey St. John relates how influential delegates of the larger states confronted the problem of small state resistance to proportional representation in the new Senate:
A month ago, Mr. Madison and Mr. Wilson, as leaders of the large States, were confident they would carry the Convention with them. Now they have been forced to adopt the strategy of their adversary Roger Sherman [of Connecticut], who believes that when you are in the majority, vote, and when in a minority, talk.1
Like the representatives of large states at the Philadelphia convention, the advocates of same-sex marriage, once confident of carrying the country after Hawaii2, Alaska,3 and Vermont,4 now again confront the reality of the absencePage 223 of consensus for raising unions between people of the same sex to a dignity equal to that of marriage.
Proponents of same-sex marriage find themselves in the position of Madison and Wilson. Faced with a dynamic and unfavorable political reality,5 we are forced to talk or face the inevitability of an unfavorable political settlement.6 This conference,7 along with others held recently along the same lines,8 evidences this understanding. I will speak about the exhaustion of both talk and action in connection with efforts to secure marriage rights for same-sex couples. I will then turn to the utility of religion as a means of effecting those rights to marriage that both traditional religions and the state appear to deny. I will end with a proposed plan of action for thePage 224 maximum effect of the new religions in carving a space for same-sex marriages.
This talk must be encouraged. It is valuable.
The American cultural conversation about sexual non-conformity has never been monolithic. It is possible that sexual non-conformity can also be reconstituted either as difference or as inconsequential - that is, as normal. Possibility, however, is not certainty. Possibility carries with it responsibility, a burden to converse within the social, political and judicial spheres.9
Expression is a powerful means of witnessing10 the reality of alternative visions of what is normal or acceptable.
Action within the framework of the issues expressed in argument must also be encouraged. Many who participated in this conference have been integral parts of that effort.11 Despite a number of arguments to the contrary,12Page 225 there is much to be learned from the experiences of African-Americans in their struggles to remake the social and political system of this country.13 In the last century they were able to undo a society whose symbolic form was encapsulated in Plessy14 by working within Plessy itself to produce its defeat in Brown.15 It is important that social action movements play themselves out with the creation of the new status of civil unions,16 benefits for domestic partnerships,17 the adjustment of adoption rules to reflect non-traditional families,18 and the attainment of all of the other civil benefits of marriage19 for those heretofore denied that status because of the nonconforming nature of their unions. But it is also important to remember the limitations of political, and especially judicial action, in the secular sphere. Brown was an important change in the law,20 but the last fifty years have demonstrated the difficulty ofPage 226 changing social patterns and the hearts of people on the basis of changes in the law.21
Yet, with respect to the rights of sexual non-conformists to form affective unions sanctioned by the states on a level of dignity equal to that of traditional heterosexual marriage, talk and action have been exhausted. Given the ground rules of the regulation of difference in the United States, there is a fairly well defined and confined space for argument and action.22 ThePage 227 parameters of the debate, and the actions possible within those parameters, have been fully developed. Our society is reduced to the imperialism of power;23 both sides now attempt to use the power of majority rule to silence their opponents without any attempt to convince them of the error of their ways.24
In a way analogous to the developments in the abortion debates,25 thePage 228 debate about same-sex marriage is passionate and immovable because the arguments center on the definition of taboos at the very foundations of the ordering of society.26 Within the confines of those parameters: what can be said has been said; what can be done has been or is being done, or at least considered.27
The parameters of that debate are currently divided into several categories: historical, religious, moral, legal, political, economic, and psychiatric. I will describe each in turn. None of the arguments suggest anything more than that people are deeply divided in ways that make it unlikely that either side of each of these debates will triumph.
The arguments based on history are simple enough to flesh out. The arguments are based on the ability to prove that people of the same sex actually married each other, or that institutions -whether political, social or religious- tolerated, condoned or facilitated such unions. The idea, among proponents of same-sex marriage, is that proof of the existence of these relationships in the past should refute arguments against same-sex marriage based on the idea that such unions are historically unknown.
For example, proponents point to unions among Chinese lesbians,28 English lesbians,29 North American indigenous peoples,30 and Sudanese and Nigerian women entering into long-term relationships to ensure fertility.31Page 229 Greek philosophical texts on love between men have also been deployed.32 In an important work, the historian John Boswell argued that rituals were developed within the Roman Catholic religion for the union of males as early as the eleventh century.33 Opponents of same-sex marriage remain unconvinced. On the one hand, they tend to reject the findings from history as inaccurate.34 On the other hand, they argue that the existence of marginal conduct throughout the ages only proves that a tiny minority of people have always thought to flout strong social mores in every generation and in every place.35 Moreover, the marginal nature of the conduct confirms social indifference at best and hostility, at worst to marriage-like unions among people of the same sex.36 Ultimately, the historical arguments pit evidence that people sometimes engaged in such unions, more or less clandestinely, against the importance and meaning of the fact that such unions were more or less clandestine and not widely known.
The legal arguments have been extensively explored.37 Opponents and proponents have sought refuge in the arcana of interpretation of the individual rights provisions of the American federal and state constitutions.38 Three United States Supreme Court cases appear to be the most widely cited -by both sides- in the debate. The first, Griswold v. Connecticut,39 upheldPage 230 married couples' right to contraceptives.40 The broad scope of the language, as well as the very broad application of the language in the cases that followed,41 suggested to many that the United States Constitution protected rights, including the right to marry, as institutions and practices that predated the Constitution itself.42 The second case, Loving v. Virginia,43 invalidated state prohibitions against interracial marriage in language as broad as that used in Griswold.44 Together, these two cases suggested that the right to marriage was fundamental to the American way of life, and that the regulation of marriage was severely limited.45 The third case, Romer v. Evans,46 suggested that legislation, the origin of which could be supported only by anti-gay animus, could not survive constitutional scrutiny under the federal Equal Protection Clause.47 Together, the three cases appear to make a strong argument against laws limiting marriage to people of different sex.48
However, opponents of same-sex marriage interpret the three cases far more narrowly.49 Moreover, it has been suggested that there is a compellingPage 231 state interest in limiting marriage to people of different sex - the regulation of potentially procreative bonded pairs.50
In what was the greatest oblique blow to the construction of a legal argument based on an interpretation of the federal Constitution, the United States Supreme Court refused to find that criminalization of the sexual conduct of gay men was forbidden by the constitution.51 Moreover, the Supreme Court has also held that marriage rights are not unlimited, even for heterosexual couples.52 And the ancient limitations against polygamy appear also to permit further regulation outside the core coupling of one man and one...