K. Anthony Appiah, Professor of Afro-American Studies and Philosophy, Harvard Univ. from his essay-review of books on same-sex marriage in New York Review of Books, June 20,1996, pp. 48-49.
For most Americans today, acquiring a spouse is the most important task in the years after high school. You are supposed to find someone you love and who loves you, to get to know each other and confirm that you are compatible, and then move into shared quarters and take up a common life. Ideally, you and your spouse then stay together, in the formula of the Book of Common Prayer, "so long as ye both shall live."
If you want to start a family, your spouse is the person with whom you will have and raise children. This is one reason sex is important to marriage. But you may not want to raise children and (while this may distress your parents) that is your right. Sex still remains important. It is a natural and pleasurable expression of marital love; which is to say that marital love, at least as most of us now conceive of it, is largely erotic.
But your marital relationship will, of course, affect almost everything you do; it will be central--especially if it goes well--to the meaning of your whole life. . . .
This image of marriage belongs to a narrative of romance that has deep roots in Western culture, but it became a possibility for large numbers of men and women only with the emergence of a sizable middle class. Its ascendancy reflects the triumph of bourgeois romance. . . .
This narrative--with its emphasis on lifelong monogamy--is, for the many who believe in it, an ideal, not something they can be sure of sustaining. Half the marriages in America now end in divorce. Casual observation (reinforced by TV soaps and sociological surveys) confirms that one of the reasons for this is that the commitment to exclusivity--especially on the part of husbands--is difficult to maintain. But this ideal is not only at odds with reality; it is wildly at odds with most traditional conceptions of marriage.
First of all, in earlier Western societies--as in most societies everywhere else--marriage was the creation of a relationship not between individuals but between families, a fact still signified by the role of the father in "giving away" the bride in many forms of marriage rite. . . . When our sisters and brothers or our children marry, we say that we have acquired "in-laws"; there is a name for this relationship or something like it in most languages.
These bonds were once important because they created socially underwritten obligations. Insofar as modern married couples recognize obligations to in-laws, by contrast, they are likely to see them either as expressions of love for their partner, or as growing out of the particular relationships that they develop with the family of a spouse. . . .
A second difference is that marriage once had substantial ritual meaning. In the Middle Ages in Europe, it was a sacrament, one of the seven holiest rites of the church (along with the Eucharist, Baptism, Confirmation, Penance, Ordination, and Extreme Unction). According to the Book of Common Prayer, the marriage of man and wife signifies the mystical union between Christ and his Church. Even today, for devout Catholics and Jews, obtaining a "real" divorce requires appeal to religious authority.
Many people still marry in churches and synagogues, under the supervision of priests, pastors, and rabbis (who are authorized by the state to create--en passant, so to say--the civil bond as they solemnize the religious one). For many, young couples a wedding still requires organ music and hymns as well as white dresses; and many rabbis and priests still insist on explaining the sacramental meaning of the wedding. But the solemnity of the occasion is a reflection, for most people, of the significance of the commitment to a life of love.
Central to these religious understandings--this is a third difference from the modern picture of marriage--is the begetting and raising of children. For Orthodox Jews, having and raising children within Jewish tradition is, where possible, a religious obligation; for Catholics, sex within marriage is permissible only if nothing "unnatural" is done to prevent conception; the different Protestant traditions and forms of service almost always mention marriage as the setting for bearing and raising children. The same Book of Common Prayer informs the congregation: "First, it was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord."
It is true that the Jewish tradition. early on, saw marital sexuality as an expression of the conjugal relationship and not merely as procreative; Luther and Calvin also grasped this idea. For Catholics, such an understanding has (notoriously) emerged only in more recent years. But most of the religious traditions we inherit here in America--and since much of our moral thinking about sex is religious, this means most of the moral traditions--have had a hard time accepting sex outside marriage.
With the triumph of the narrative of bourgeois romance, these three elements the alliance between families, the sacramental meaning, and the centrality of procreation--have lost their force for many even here in America, the Western country with the highest proportion of its population still nominally committed to religion. The end of a marriage strikes many as a terrible thing: but this is neither because it is the betrayal of a union between families nor because it is the breaking of a sacred bond. And a marriage that is childless by choice is not ipso facto a failure. Conversely, for many couples children enrich a marriage, but they are not its central meaning; and the success of a marriage is now celebrated, in the end, neither as the bonding of families, nor as the fulfillment of a sacred covenant, but as the loving confluence of two lives.
The ideal of the marital relationship I have been describing can be embedded, for heterosexual couples, in a vast web of laws. To invoke these laws in some states, you must go through a formal ceremony; in others--the common-law marriage states you can end up legally entangled even if you deliberately and explicitly refuse both ceremony and legal license. But however marriage gets established, its legal consequences are enormous.
They include: rights to support and alimony; the ability to act for an incapacitated spouse; the guarantee of benefits in insurance: visitation rights in hospital and in prison; "an evidentiary privilege for marital communications"; rights to inherit property: and various other survivor's benefits. While others may adopt children in some jurisdictions, married couples have the right--subject to some conditions--to do so everywhere. Mr. Eskridge lists the "modest 'marriage penalty'" in income taxes for two-income families among the disadvantages of marriage, but being treated as a single household for tax purposes is often an advantage: an unemployed spouse can be claimed as a dependent, and no gift taxes have to be paid on transfers between spouses.
These legal rights (and their correlative obligations) are justified by three fundamentally distinct sorts of consideration.
The "evidentiary privilege for marital communications" reflects the distinctive obligations of the marital relationship. I can no more be asked to provide evidence that will convict my spouse than I can be forced to testify against myself. These are the rights of marital relationship--among the most important of which is the exclusion of the government from the regulation of our (consensual) sexual life.
A second set of rights--rights of trusteeship--reflects the recognition that I am my spouse's natural representative because I know him, his character, and his desires, because I care for him and have his interests at heart. It is as if each spouse acquires in marriage the rights (and correlative duties) to act for each other that their parents once had.
The final class of rights derives from a recognition of the household as an economic unit, where transfers between members do not count as public economic events. This reality is captured in the prayer-book formula: "with all my worldly goods I thee endow. " Such are the rights of economic identity.
Many of the rights of trusteeship that married people automatically have can be created by special legal arrangements: you can give your partner a permanent power-of-attorney and explicitly instruct medical authorities to recognize him as your representative if you become incapacitated. Some of the rights of economic identity can be recreated, too: you can write wills; you can create contractual obligations of support to come into effect if you cease to live together. (In some cities couples can acquire some rights through registering as "domestic partners.")
In short, with a good lawyer--and at less cost than the average wedding--you can cobble together a bundle of legal rights of economic identity and trusteeship similar to those of married couples. Outside of marriage, however, some of the rights of economic identity will remain unavailable: you cannot claim the tax advantages (or disadvantages) of married people; you cannot benefit from the other's Social Security or veteran's benefits; what rights to insurance you have depend on your employers. And, so far as I can see, the rights of marital relationship--including the right to sexual privacy that the Supreme Court, in its decision in Bowers v. Hardwick, explicitly denied to homosexuals--cannot be acquired by any sort of legal agreement.
A final, more general benefit flows from the state's recognition of heterosexual marriage: in picking out married couples for special grace and favor, the state expresses support for their commitment and respect for their relationship. Dr. Johnson once rightly insisted (with his distinctive mixture of hyperbole and good sense) on the difficulty of the marital commitment and on the importance of the social rules and attitudes that recognize and maintain it:
It is so far from being natural for a man and woman to live in a state of marriage, that we find all the motives which they have for remaining in that connection, and the restraints which civilized society imposes to prevent separation, are hardly sufficient to keep them together.
Denying that recognition is rightly seen, both by those who favor and those who oppose gay marriage, not only as a refusal to support such marriages, but also as an expression of indifference--even hostility--toward gay relationships. It is clear that for many people (whether or not they want to marry) this standing insult, as they regard it, is the most important issue of all.
A married couple can gain a great deal, then, from legal recognition. They gain it whether their relationship is deep or shallow, faithful or faithless. Any currently unmarried man and woman can wander into a municipal office in their home town and get this full panoply of benefits without even the most perfunctory investigation. (Since prisoners--even those serving life sentences without parole--have the constitutional right to marry, you can get a marriage license even if you can't wander in off the street.) On the other hand, no two people, however deeply loving their relationship, however sanctified by religious rite or celebrated by their families and friends, can acquire these benefits through the laws of marriage if they are of the same sex…
I have ignored so far the fact that bourgeois romance and the traditional vision of marriage had something in common: neither was a union of equals. The Book of Common Prayer had Mrs. Smith promising to obey Mr. Smith; this was not a promise that Mr. Smith was expected to reciprocate. And she had the major responsibility for raising the children.
Facts like these are crucial in interpreting matrimonial law; they require us to recognize how central the experience of middle-class patriarchy is to the legal meaning of marriage. The practice of allowing a wife access to health and Social Security benefits associated with her husband's job and his income, for example, emerged when the wives of the middle-class men who had the most valuable forms of insurance and pension provisions did not have incomes of their own. The tax law's treatment of a couple as a single unit thus at first, reflected not the fungibility of two incomes but a shared dependence on one. And alimony was conceived for women whose unfaithful husbands moved on, because being a middle-class wife (and, especially, a mother) meant you didn't do paid work.
Much of the economic structure of marriage still reflects the old inequality of husband and wife. Access to health care should be something that every adult has for him or herself, not something that you get as someone else's dependent. Women with adequate incomes and careers of their own would not have to be dependent on alimony. In sum, some of what straight people--and especially wives--get through marriage, they ought to be able to get without it.
Reflection on the current structure of marriage, therefore, suggests plenty of scope for rational reform. It is clear, however, that such reforms are not about to take place.
The obvious interim solution would be to allow gay couples to get married. Unfortunately, this proposal faces what must in a democracy count as a serious impediment: as many as two thirds of the population are opposed to it...