Licensing Marriage begins with Marriage, not licenses

Posted by Chairm.

Here is a quote from Phil, who frequents the comments:

Nothing about reproduction is used as a criteria in issuing marriage licenses. No facet of actual reproduction matters one whit when we're talking about mixed-sex couples. [...] That's simply the way every state in America works. [...] Or is there some example of a state where being "reproductive" is required for a relationship to merit a marriage license?

-- Phil Thibedeaux @ 3/11/2010 11:43:00 PM.

Back up the truck, Phil.

[Click here to read the rest of the blogpost.]

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What is being licensed?

Society issues licenses based on the thing being licensed. The licensing criteria do not self-justify. It is necessary to begin with marriage itself.

What makes marriage worthy of special treatment in our society?

What are the essentials of marriage such that it is different from other stuff -- other types of relationships?

Backup to before society pins the label "marriage" on this particular type of relationship. Before a special status is assigned to it. Before a special status is even considered necessary for society's recognition of the essentials of this type of stuff.

Marriage is a social institution, first and foremost, and is not a creation of government. The marriage law recognizes this thing, marriage, and the special status is due to the social institution's core meaning: sex integration, responsible procreation, and these combined as a coherent whole.

From this the licensing scheme follows. It is not the other way around.

Society justly discriminates between marriage and other stuff.

Phil has revealed in his comments that he operates on a false assumption: that to permit a man to become a husband, by marrying a woman, and to permit a woman to become a wife, by marrying a man, is some sort of unjust sex discrimination against men and women who'd choose a different type of relationship.

The integration of the sexes is how the man makes a wife of a woman; and how a woman makes a husband of a man. It takes a man and a woman to form a mating pair; it takes a man and a woman to comprise a fertile couple; it takes a man and a woman to provide children a father and a mother. None of this is code for unjust sex discrimination against men and women. The meaning of marriage is not sex-neutral; and marriage does not exclude either sex.

Also, responsible procreation is embedded in the marriage law. This is the marital presumption of paternity whereby the husband is presumed the father of children born to his wife during their marriage. This presumption is active upon consummation of the marriage (i.e. through coitus). It is vigorously enforced in our legal system.

A Sexual Type of Relationship.

The sexual basis for this central presumption of marriage provides the criteria for recognizing the union of husband and wife as a public sexual relationship meriting special status. It is the default position that the union is sexualized and that it will be consummated and that it will be monogamous. This sexual basis is also expressed in our legal system's grounds for annulment, divorce, and so forth. That sexual basis is extrinsic to the one-sexed scenario.

However, the marital presumption of paternity also entails criteria for its rebuttal, on a case-by-case basis. These criteria begin with the sexual basis of marriage. The system protects the child, the parents and their marriage; it also protects the integrity of the social institution itself. One way this is done is by the recognition that there is a deeply private aspect to the public sexual aspect of marriage. For instance, the government does not send inspectors to peer into the marital bedroom of newlyweds nor does the government force man and wife to engage in specific sexual behavior. But, for the presumption of paternity and for grounds for annulment, the legal system provides for the private aspect to be brought into the public sphere -- by either the husband or the wife.

A Type of Relationship: Public Because Sexual and Sexual Because Public.

These provisions are how the treatment of the sexual aspect of marriage, and the sexual basis for both sex integration and responsible procreation, has manifested in our legal system. This in no way declares that there is no sexual basis to the public recognition of the social institution. This sexual basis does not transfer to the one-sexed scenario. Some other secondary or tertiary aspects of marriage might, but not this sexual basis for marriage.

What is SSM supposed to license?

Now, if we are to take Phil's comments at face value, we'd expect that the argument for SSM is based on a type of relationship whose essentials are what makes that type of relationship standout from the rest.

We'd expect that these essentials are sex-neutral, as per his comments. And we'd expect that given there is no sexual behavior requirement, and no sexual orientation requirement, explicitly provided in the licensing scheme where SSM has been imposed, that Phil is okay with keeping the sexual aspect (if any) out of the public regard of SSM.

Because Phil would treat marriage just as he envisages SSM, he is also arguing that marriage's sexual aspect be removed from public regard of marriage.

SSM Licensing Cares Not One Whit About Sex.

That leads to problems such as why would society have a special status for "marriage" if it is sexless, in public regard, and if it is severed from responsible procreation, also in public regard? What might be the special reason or reasons for the special status of this type of relationship?

Or, while backing up the truck, we might ask if Phil is against the special status that is accorded marriage, in the first place? I have asked. His arguments, and his stated pro-SSM viewpoint, strongly suggest that he can offer no reasons for special status for marriage, much less for this or that version of the one-sexed type of relationship he has in mind.

On the societal level, marriage must become as meaningless as SSM. SSM is a hollow idea: licensing SSM would be licensing nothing more than a conceptual mess. That should not be merged with marriage.

Edges Inward vs Core Outward.

SSMers are quite eager to attack marriage -- as a social institution -- and to assert as the status quo that the government owns this foundation of civil society. They are fond of deconstructing marriage from the edges inward, rather than defending the type of relationship they have in mind from the core outward. Hence Phil begins with licensing as the master of marriage rather than with the type of relationship that the licensing is setup to serve.

Licensing is not the beginning. The begining of marriage, in the law, is the societal reason(s) that the law recognizes this thing at all. And the thing that the legal institution reflects is not built from the outside inward. The legal entitity is not a monument that floats in the air; it is built on what the social insitution is, at its core, and as such the legal institution regulates the parameters of marriage.

If there is a right to marry, then, it is a right to something. And that something is forming a certain type of relationship. Through licensing, and the special status that follows, society shows preference for that type of relationship which is distinguishable from other stuff -- before the label and status is attached to it. On a case-by-case basis there is little in the way of screening; but what screening or gatekeeping exists is to serve the social institution into which people enter when they agree to marry. Societal consent is joined with the consent of the couple (as individuals and as a pair -- bride and groom). But this begins with what marriage is, what makes it special, what makes it different from other stuff. The licensing serves to reinforce the pre-existing social distinction so that the rest of society may officially know who is and who is not married.

Society Responds to the Core of the Social Institution.

Putting the law aside, the fact remains that across the anthropological and historical record marriage has existed to unite the two sexes and to provide for the bond between both parents (mom and dad) and their children. The parents are responsible for their offspring; and the children come into the world with a birthright to both parents. How society responds to this core of marriage may vary, from culture to culture, from generation to generation, sometimes wisely and sometimes not, but respond it will.

As for SSMers who insist that marriage now be deemed sex-neutral, or sexless even, and who demand that the core of the social institution be severed from the legal insitutition, they put forth a viewpoint that is anti-marriage.

Anti-marriage because that viewpoint cuts marriage off from the special reason for its special status. Anti-marriage because the pro-SSM viewpoint would demote the core meaning of marriage below even that of protective status to that of a barely tolerative status. Indeed, the core meaning of marriage would be trashed as intolerable bigotry. Trashed in the law and, through the force of government, in the culture as well.

What Would SSM Licensing Care One Whit About?

The SSM campaign emphasizes gayness, gay identity politics, and argues that the merger of SSM with marriage would make normative homosexuality. It argues that the status quo -- marriage's opposite-sexed sexual basis -- is disparagement of gayness, gay identity politics, and homosexuality.

But the licensing of marriage cares not whit about that stuff. Marriage law is about marriage. On the other hand, SSM argumentation is about these other things that serve a nonmarriage purpose.

And yet...

No SSM law has made gayness a legal requirement for a license; no SSM law has made same-sex sexual behavior mandatory for consummation, annulment provisons, nor for adultery-divorce. No SSM law has lived-up to the supposed standards of argumentation that SSMers, such as Phil, recite endlessly while they attack marriage.

Discrimination between SSM and other stuff?

What are the legitimate criteria that would flow from the essential(s) of SSM? Typically, SSMers can offer only the glibbest of efforts to answer. And then they flee from justifying the eligiblity and ineligiblity distinctions that they assume, mistakenly, can be automatically borrowed from marriage. Mistakenly, because their SSM viewpoint rejects the core meaning of marriage from which these boundaries are drawn.

Drawing Lines Justified by the Core Meaning.

The core meaning of marriage does matter, more than "one whit", when it comes to the protocols of consent to marry; when it comes to drawing the line at which related people are eligible and which are ineligible; when it comes to the age requirements; when it comes to the limit of one union of husband and wife at-a-time.

The licensing begins with the type of relationship, not with this or that particular instance of a "relationship". The lines are not arbitrary impositions from the edges but are boundaries around the core meaning.

And, contrary to SSMers who complain that the core meaning of marriage is brought up only to limit same-sex scenarios but never to limit opposite-sex scenarios, these lines of eligiblity are justified by the public sexual aspect that SSMers persistently attack as irrelevant to marital status, licensing, and lawmaking. The typical marriage law on licensing is explicit in excluding opposite-sexed scenarios.

Drawing Unjustified Lines Around SSM.

To what do SSMers expect society to respond when looking at the type of relationship that SSMers have in mind? If it is not sexual, and if it is sex-neutral, and if it is severed from civil society's foundational institution, then, what's left, really, to license, much less to accord special status? I've asked this and the answer that comes back is nothing that would distinguish SSM from the rest of the types of relationships and types of living arrangements that are in the nonmarriage category -- most of which are not sexualized, are not defined by sexual orientation, and are actually two-sexed rather than sex-exclusive.

Besides, that pro-SSM complaint is the central theme of the SSM campaign. That is, they stand against the arbitrary exercise of governmental authority. But they arbitrarily want to borrow the lines of eligiblity, and the justification for drawing such lines, rather than defend those lines on the basis of whatever might be the essential(s) of the relationship type they have in mind.

Even if offered in good faith discussion, this central theme of the SSM campaign is not credible. It destroys their own demand for merging SSM with the special status of marriage. How can they attach marital status to SSM while denying the special reason for that special status? I think this part of SSM argumentation is stuck on stupid. And since it is such a huge part of SSM argumentation, its profound flaws render the whole enterprise as one big self-defeating heap of nonsense.

Their argumentation is an attack on all the boundaries because it is an attack on the core around which those boundaries are justly placed. They carry the burden of justifying boundaries (if they can) as part and parcel of their pro-SSM complaint and arguments. They cannot expect the core of marriage to continue to do the work of establishing and maintaining boundaries the basis of which they have derided as unjust.

Before they can reasonably argue about the criteria for licensing, SSMers need to state their criteria for SSM itself (what are its essentials?) and for drawing lines, justly, around that much. If they'd refuse, they'd lose because they'd abandon their own stated standards.

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[Modified 13 Mar 2010]: I've added a link to the quote at the top of this blogpost. The link goes to the comment section from which the quote from Phil was taken. Phil's meanderings in that comment trail exemplify the sophistry of SSM argumentation as presented by the SSM campaign in general. SSMers could make better arguments, however, their goal is not protection equality but rather Government favoritism for their favored subset of nonmarriage.