Stumbling across the ABC’s “Religion and Ethics” department, I discovered David Novak’s rather bluntly titled article: “No Right to Marriage for Same-Sex Couples“. It’s long, rambling and so far hasn’t attracted a lot of attention (judging from the solitary comment).
Novak’s points are at least made clearly enough (though rather verbose), but in the end they boil down to a set of very ruthless and arbitrary value judgments. Novak feels it necessary to declare himself a “Traditional Jew”, so I can’t help but feel that there is some religious motivation behind his position, even though he briefly tries to dispel that notion. He does appear to claim, a little way in, that God created marriage.
Throughout his piece, Novak (like most other opponents of same-sex marriage) talks of the “institution” of marriage. I find this to be a clever rhetorical device for giving form to an abstraction. The word “institution” merely means “tradition”, yet the former seems to demand more reverence. Tradition, by definition, is just the way things have been done in the past, but “institution” seems to imply something more formal, almost concrete, built-up over the ages from humanity’s noble efforts. In fact, three times Novak mentions the “traditional institution” of marriage, wherein I fancy he’s tripping over himself.
Novak’s first point of interest (after trying to dismantle a strange analogy with public education) is that the state should not interfere with marriage because marriage predates and “transcends” the state. I’m only quoting selected parts of Novak’s article, but much of it is the kind of waffle that rings all sorts of cognitive alarm bells (if there was a valid point to be made, surely it would have been made in far fewer words and with far more precision).
Novak lays the foundation of his argument as follows:
The most the state can honestly do in such appropriation of an institution that predates its founding – and in many ways transcends its operation – is to refine and reformulate in its governance of this institution the original reasons why this institution has deserved and still deserves social recognition and support.
A bit of a mouthful, but not entirely unreasonable. I’ve stopped Novak there because what he says next is truly ridiculous:
That should be done by judges, already designated by society to be the proper interpreters of the law. If judges cannot refine and reform the existing institution of marriage, then legislators who want this radical change should implement the abolition of this institution altogether, or they should subsume what used to be known as “domestic relations” under some other existing institution, such as private contracts. But, if they do that, they should be honest enough to stop calling what would not have been recognized in law as “marriage.”
I’m not sure what test Novak is proposing to determine whether judges can “refine and reform” marriage. Judges may well have already sanctioned same-sex marriage if not for the explicit intervention of legislators. In Australia at least, it’s the Marriage Act that provides the legal basis for marriage being heterosexual in nature, not any judge’s determination (as far as I’m aware, though of course I’m not a laywer). Novak would be foolish to assume that the judiciary holds his same views on the origins of and reasons for marriage. To me, same-sex marriage is a natural part of the existing “institution” of marriage (one that has been conspicuously omitted), not at all a radical departure from it.
Novak seems committed to the idea that marriage cannot physically be redefined, though I can’t imagine what he thinks would happen if we simply decided to do so anyway. It’s a testament to the emptiness of Novak’s (and others’) beliefs that they are so possessive of the word “marriage”. Why should the state, and by extension society, be forced to use a different term (e.g. “civil union”) for the concept we want to call “marriage”? You can’t own a word, either morally or legally (except of course as a trademark). Even if same-sex marriage was a significant departure from the traditional definition – which it really isn’t – it’s perfectly acceptable for words to be co-opted into new meanings, as long as the meaning is clear. Language constantly evolves. Many more words have their meanings corrupted beyond recognition*, and yet this is looked upon at worst as a mere annoyance.
However, Novak is not finished yet. He tells us that there are good reasons, aside from tradition, for restricting marriage to heterosexual couples. He cites one Martha Nussbaum, who divides the various reasons for marriage into two categories: expressive (e.g. love, companionship) and procreative (having and raising children). Novak decides that the procreative aspect of marriage, unlike the expressive aspect, is in the public interest and should “be governed by the laws of the state”:
The state’s interest in procreation and familial continuity is because the state needs to replenish its citizenry regularly and thus ensure social continuity.
There is something terribly cold about this logic. Novak talks about “the state’s” interest, as though this is somehow divorced from society’s interest, and this obscures a fairly obvious and universal human sentiment. Yes, it clearly is in society’s interest to continue procreating (at some level, at least). However, surely the expressive aspect of marriage is also in society’s interest. Surely our society is richer and more human for its collective (not just individual) embrace of love and companionship. The state is supposed to serve the interests of society, not just keep the human race alive. Nevertheless, Novak continues:
Since procreation combined with child rearing is the only truly public reason for marriage, I think marriage is essentially endorsed and structured by the state to best facilitate the procreation and rearing of children.
This betrays a rather stunted idea of what a “public reason for marriage” might be. Novak is saying, quite earnestly, that love cannot be a basis for the legal recognition of marriage. Couples should only be allowed to marry on the basis of their having procreation and/or parenting potential. This is a particularly egregious value judgement, and is completely nonsensical when you consider all the symbolism and ritual associated with marriage. Marriage vows are generally about love and companionship, not raising kids.
Even after we accept this monstrous logic, Novak is aware that there are still two obvious problems: (a) not all heterosexual couples can or even intend to have children, and (b) homosexual couples can and do have kids (in various ways).
On (a), Novak invokes a bit of Latin:
I would answer that objection by citing the old legal principle: de minimis non curat lex, which could be translated loosely as “the law is only made for what usually obtains.”
The fact is, the majority of people who marry are fertile and are of an age to be fertile. And how could we reasonably establish a criterion to determine who is fertile and who is not? Moreover, in an age when new reproductive technologies are enabling persons heretofore assumed to be sterile to become parents, almost no one can be presumed to be incurably infertile.
That is, the law is designed to take care of the big problems, and we shouldn’t worry so much about the little ones. Basically, we can’t really come up with a ironclad test for fertility, especially considering technological options. However, this undermines his larger point. Novak is already applying a gender-based fertility test (heterosexual and you’re in, homosexual and you’re out), which is by no means an ironclad determiner of a couple’s ability to have kids, one way or another. However, if we hold the gender test to be valid – as Novak does – why not more fine-grained tests? Why not have a marriage automatically revoked after a period of time if no babies have resulted? That would be quite easy to administer, and would almost certainly achieve Novak’s stated objectives for marriage.
On (b), Novak descends into pure snobbery:
But let us examine some examples of how gays and lesbians can “have” or “create” children.
The first example concerns children from a previous – and I assume heterosexual - marriage. Since children from a previous marriage can be and often are raised by a single parent after having been widowed or divorced, I fail to see what the addition of another adult adds to the family, especially when that new spouse functions in loco parentis, at least de facto, replacing the now displaced parent in the new domestic arrangement.
What passes for an argument is merely Novak “failing to see” how a homosexual partner can fulfil the role of a parent. This is empty prejudice, with not even the veneer of an intelligent point. He further adds:
There is also the question of adultery and its connection to the question of custody of children after a divorce. That is, when an originally heterosexual couple divorces because one of the spouses decides he or she is really homosexual, is it often the case that this spouse discovered his or her homosexuality from having been involved in a homosexual relationship already?
I don’t know Novak – is it often the case? You don’t appear to have any evidence that homosexual parents are engaging in adultery. I myself don’t have any problem imagining that a homosexual parent might discover his/her homosexuality without engaging in an extramarital affair. Are you perhaps predisposed to thinking of homosexuals as being morally inferior?
The second example concerns surrogacy or artificial insemination, which creates a violation of a child’s natural right to have both natural parents raise him or her.
I skipped over the bit when Novak rambles on about a child’s “natural right” to have a mother and a father, but it comes into play here. Novak never gets around to saying what is actually wrong, morally, legally or practically, with surrogacy or artificial insemination. His case is, once again, built entirely on value judgments. Bringing a bit of the real world into this story, it seems a Victorian gay couple have just been granted the right to parent a daughter conceived with a surrogate mother. If there was anything wrong there the judge certainly couldn’t discern it. (Remember again that judges are the people Novak would have guarding the institution of marriage).
Personally, I reject the entire notion of natural rights. I prefer to think of “rights” as an evolving societal construct that has no meaning without the consent and support of members of society. What society demands principally, I think, is that a child have dedicated and loving parents. I don’t think we’re all that worried about their gender. (At least, we won’t care about it for long, given the trends in public opinion of same-sex marriage.)
Novak then talks about adoption, and seems to do a bit of backtracking:
Nussbaum’s last example concerns adoption. Despite all my talk about natural parentage and childhood, I am in favour of the institution of adoption. Surely, a child’s right to being raised to adulthood is better upheld by adoptive parents than by natural parents who are unable or unwilling to raise their natural offspring.
And, in principle, I am not opposed to a gay or lesbian couple being able to raise a child so abandoned by his or her natural parents. Surely, a child is better raised by two people who love him or her and each other, rather than being raised in the less personal setting of an orphanage, or by foster parents.
Exceptions, exceptions, exceptions. Novak is clearly quite eager to make an exception for adoption, even for homosexual couples, but again this undermines his main point. If marriage is all about raising kids, and Novak concedes that a homosexual couple can be viable parents, then why can’t homosexual adoptive parents get married? His logic is tangled into knots of self contradiction.
The two previously-quoted paragraphs provide at least a flame of enlightenment, which Novak can’t help but extinguish in the following text. Nothing else Novak has said so far has any bearing on homosexual vs. heterosexual adoption, and yet he still manages to worm his way into arguing that the latter is preferable.
That is because a heterosexual couple can better simulate – perhaps improve upon – the heterosexual union that produced this child in the first place. This better simulates the duty of the natural parents to raise this child, a duty they would not or could not exercise.
Better “simulate”? Whatever parenthood might entail, it’s not about “simulating” anything, least of all (in the case of adoption) the original parents. There is clearly no biological directive at work here – no “natural right” left to uphold – so what makes a homosexual couple less able to raise an adopted child than a heterosexual couple?
Novak concludes by returning to the state, and raising the notion of “civil unions”:
Although I have extrapolated on many points at which Martha Nussbaum and I disagree, I do agree with her when she says: “I personally favor the solution of leaving civil unions to the state and leaving marriage to religions and other private entities.” In fact, such a move would greatly strengthen the social prestige of religious marriage.
Novak’s religious underpinnings are showing here. There would be utter outrage from across secular society at the notion of “leaving marriage to religions and other private entities”. Marriage is a secular concept, co-opted by religion by means of various rules and rituals. Every society in the world has marriage, even those that have nothing in common by way of religious tradition. Given the universal applicability of marriage, it is society that grants religion the privilege of officiating marriage, not the other way around.
It is secular society, not religion, that holds the mandate for changing it.
