A LOSS, IN NJ, FOR PROPONENTS OF SSM: Joanna Grossman and Linda McClain

...The Concurring Opinion: Marriage Manages "the Sexes"?

In his concurring opinion in the New Jersey case, Judge Parrillo makes an even more dramatic appeal to the marriage-is-procreation argument. The concurrence specifically criticizes Goodridge's characterization of commitment as the sine qua non of marriage. It warns that this "distillation of marriage down to its pure 'close personal relationship' essence strips the social institution 'of any goal or end beyond the intrinsic emotional, psychological, or sexual satisfaction which the relationship brings to the individuals involved.'"

The double quotations marks are used here because Parrillo himself is quoting from Daniel Cere, the Director of the Institute for the Study of Marriage, Law, and Culture at McGill University. Cere further notes what he believes to be the importance of marriage's broad embrace of "the fundamental facets of [traditional] conjugal life: the fact of sexual difference; the enormous tide of heterosexual desire in human life, the massive significance of male female bonding in human life; the procreativity of heterosexual bonding, the unique social ecology of heterosexual parenting which bonds children to their biological parents, and the rich genealogical nature of heterosexual family ties."

Marriage, Parrillo concludes, manages the fact that "there are two sexes." Its purpose is "not to mandate procreation but to control or ameliorate its consequences."

This argument that marriage "manages" the sexes sounds disturbingly like a much older and extremely invidious one--which held that marriage serves the supposedly important public purpose of ordering relations between the sexes. At the time, the "order" imposed was that of a hierarchical relationship between man and wife--in which the man was dominant and the woman lacked the most basic rights.

Today, constitutional norms of sex equality would bar a return to this kind of "order." So, too, should they bar the imposition of an "order" that excludes same-sex couples.

Can Marriage's Central Purpose Really Be to "Tame" Straight Men?

If one doubts that Cere's point is to return to the past, one need only consult a just-released report, The Future of Family Law: Law and the Marriage Crisis in North America, which was co-authored by Cere's Institute. This report argues that contemporary conflicts over family law rest on a deeper conflict between two competing visions of marriage: the older (and to the report's authors, superior) model of conjugal marriage and the newer (and to the report's authors, deeply troubling) model of marriage as merely a "close personal relationship."

The report uses striking language about marriage as a way of life involving the "struggle" to bridge "sexual difference." Marriage, in their eyes, is a way of regulating otherwise unruly heterosexual desire--a desire that otherwise causes "immense personal and social damage." Heterosexual marriage, in the eyes of the report, is meant to avoid "the passive, unregulated heterosexual reality [of] multiple failed relationships and millions of fatherless children." ...

Will this ominous picture of heterosexual life emerge as a persuasive contemporary justification for why marriage must remain a unique relationship between one man and one woman? It remains to be seen, but we hope not.

Even if this vision did carry the day, how would allowing same-sex couples to marry hinder the institution of marriage from managing this heterosexual sexual ecology?

Indeed, why wouldn't a similar argument about managing desire and channeling it into socially constructive avenues (like long-term, marital commitment) pertain to the benefits of marriage for same-sex couples? (Indeed, some supporters of same-sex marriage extol its potential to channel or domesticate homosexual desire.)

Given that gay men and lesbians do become parents and nurture children, surely they, too, as Goodridge concluded, would benefit from the security and stability afforded by the institution of marriage.

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posted by Eve at 1:44 PM VOTE

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