Drawing the line on marriage

A few of the inconsistencies in the ‘gay marriage’ debate…

by Kevin Smith

“Keep Marriage Special,” (KMS) a lobby group including Anglican bishops and MPs, recently claimed that allowing gay marriage could lead to legalising polygamy and incest. This kind of “slippery slope” argument has been employed many times and in various forms against same-sex marriage. KMS now cites polygamy and incest as the threats; Rick Santorum infamously suggested bestiality. They’re all strands of the same twisted logic.

The suggestions are as offensive as they are ridiculous, but it’s not enough simply to identify these claims as mere scaremongering. It’s important to articulate not just that they’re absurd and outlandish, but why they’re wrong.

In demonstrating this, there are two pertinent questions, the second separate but related to the first. The first is addressing the “slippery slope” argument: why won’t allowing gay marriage necessarily lead to these other spectres materialising? The second issue strikes to the nature of the relationships mentioned: what is it that makes same-sex marriage different from these other things? If we’re to fully understand why Santorum and KMS are wrong on this, we need to answer both.

Slope, or staircase?

We all know the slippery slope argument, which threatens that breaching the status quo now will prompt future breaches of escalating severity – the “give an inch, they’ll take a mile” argument. “It might be one bad test now, Junior, but soon it’ll be skipped classes, then drugs, then unemployment, then homelessness!”

The argument above against gay marriage is one such example. It suggests that if we accept a change in our conception of marriage now, then under the right circumstances, nothing would stop us accepting the kind of change that would permit any of these other relationships—human+animal; human+close family relation; human+multiple other humans—being recognised as “marriages.”

On one level, of course, this is correct: nothing does stop us from recognising, legally, whatever we as a society acting through our legislatures want. That’s how democracy works. If our legislatures decreed tomorrow that any of those relationships above were “marriages,” so they would be, at least in law. Similarly, lawmakers could decree that only unions celebrated on Thursdays would be recognised in law as “marriages,” and this would indeed be the law.

But the idea that preventing same-sex marriage means this won’t happen – i.e. that this is the step at the top of the slippery slope, and as a result we must resist it at all costs – is simply absurd. One can’t possibly follow from the other. Our legislatures and courts do alter family institutions including marriage more or less all the time. The grounds for divorce have changed. The notion that you can get married in front of a notary instead of a priest is accepted. Married women have property rights. Married women themselves are no longer considered property. These are all “changes” from previous conceptions of marriage. We might slam the barn door, but the horse is long gone. If this is a slippery slope, we’re on it.

Some might claim in response that the parties integral to a marriage – one man and one woman – have never been altered, and that this opposite-sex element is more significant than any of the arguably tangential features cited above. If we expand the permissible parties to a marriage to include same-sex couples (so the argument would go) then eventually this might include anything, depending on the prevailing morality of the majority at any given point.

First, it must be noted that the facts presupposed by this argument might not even be correct: John Boswell has written extensively on the evidence for the existence of officially recognised same-sex unions in pre-modern Europe. But even if we assume that marriage has been traditionally opposite-sexed, the answer, as above, is that any legislature always will have the power to change how it is recognised in law at any time.

Furthermore, we do legislate based on prevailing morality. When it’s ok to kill someone and when it isn’t (cf. laws on wartime killings, necessity, acceptable provocation, self-defence, etc), what actions warrant the title of “rape,” at what age can people vote, or serve in the army, or drink – we accept that there are laws in all of these areas and more, and that those laws are principally informed by our collective morality as a society. Thus, it’s not only bizarre to suggest that marriage is different and should be protected and set away from influence by “moral” considerations… it’s impossible.

This is one answer to the slippery slope argument as applied to same-sex marriage: it’s not a good argument because we’re already on it, and banning (or continuing to ban) same-sex marriage won’t change that.

The other answer is to argue that it’s not a slippery slope at all, but (it is suggested here) a staircase. There might be more or less severe options up or down the staircase, but we can justify drawing a line in a certain place and saying “no further,” because anything beyond the line is of a fundamentally different quality than everything up to it. When people talk about “digging in a heel” on a slippery slope to stop the slide, what they are arguably trying to do is turn the slope into a staircase, by identifying a delineating factor which provides a rational basis upon which to halt the descent at a given point.

This is a way of objecting to the slippery slope argument, but it also engages the second issue mentioned above: why is same-sex marriage different from any of the various threats regarding what marriage might become?

This in turn asks us to consider the very nature of marriage: before we say what marriage isn’t, we need to be clear what marriage is. Is there something about marriage that makes it inherently opposite-sexed? That is, does marriage by its very nature require one man and one woman?

What is marriage about?

The “conjugal” definition would say yes: marriage is intrinsically opposite-sexed. This argument, in brief, suggests that marriage is about bringing offspring into the world. Gay couples can’t, and so ergo they can’t get married either. This was the view taken in the lower court in Goodridge, the famous Massachusetts case that eventually (in a subsequent decision) allowed gay marriage. The judge concluded that prohibiting same-sex marriage furthered the Legislature’s legitimate interest in safeguarding the “primary purpose” of marriage; that is, procreation. The legislature could rationally limit marriage to opposite-sex couples, he stated, because those couples are “theoretically… capable of procreation,” and do not rely on “inherently more cumbersome” non-coital means of reproduction, making them “more likely than same-sex couples to have children, or more children.”

If this was the case, though, then society ought to refuse to recognise as a marriage any heterosexual union that fails to bring offspring into the world. Under a strict “conjugal” basis for marriage, infertile couples, people who seek to wed after their child-bearing years, or couples who simply choose not to have children could not be considered to be “married.” To claim that there is a moral difference between a heterosexual couple who are adamantly against ever having children, and a same-sex couple who intend to adopt many children, that would validate the former union as a “marriage” while excluding the latter simply on the grounds that the former couple could in principle have children, is to rely on a fiction too far. The Superior Court judge in Goodridge recognised this too, declaring, “This court recognizes that societal attitudes and norms are constantly evolving. Today, many married couples choose not to or cannot bear children. Likewise, many same-sex couples do have children… [T]his is a strong argument for legalizing same-sex marriage.”¹

Is the basis of marriage the economic partnership that takes place? Partly, but not purely. Once, this was arguably the case: a wife was effectively considered a chattel, and the husband would be expected to bring a dowry to the union, in exchange for the wife’s family endorsing the partnership. In some respects, vestiges of these attitudes remain: consider our practice where a father “gives his daughter away,” if only in name. Although society has largely moved on from thinking about marriage as a “economic alliance” between families, it’s true that most married couples today integrate their financial affairs, sharing bank accounts, bills, property, and often estate planning. But this aspect clearly fails to give a full account of what the modern institution of marriage is about. Not only is economic integration certainly not a prerequisite of marriage, but even in the majority of cases where it does exist, it undoubtedly lacks the centrality to unions that it once had.

Some might suggest that it is a couple’s commitment to permanent companionship (at least stated, if decreasingly borne out in practice) that underpins modern marriages, and the desire for the societal recognition and legal advantages such as survivorship or hospital visitation rights that marriage provides. This avoids the problems presented by the “conjugal” view of marriage – here, the “permanent companionship” model focuses on the quality of the couple’s relationship, not their future procreative potential. Again though, the theory is accurate, but incomplete: marriage is a commitment to permanent companionship, but one can imagine all sorts of relationships that share this quality and might deserve the same advantages without being “marriages.” The example of two elderly sisters living together is sometimes cited: if marriage is just about wanting to confirm and validate a lifelong relationship, and possibly receive tax breaks or other benefits in the process, should the sisters be allowed to get married? How about two people in a non-romantic carer / dependent relationship?

It is here that the “permanent companionship” thesis falls short. The key element that sets marriage apart from a mere permanent companionship is that, in our culture’s modern conception, there should be a romantic element to the parties’ relationship. We accept that people should be able to marry whomever they choose, without being restricted by background, class, ethnicity, family stipulation, or any other duress. What we do expect – indeed, the only expectation – is that the parties love each other, and declare their intention to commit to one another exclusively. This expectation manifests itself in the requirement for consummation. To put it bluntly: sex is key, and lack of consummation provides grounds for annulment (Matrimonial Causes Act 1973 s.12). In other words, while sex with someone other than your spouse (adultery) provides grounds for declaring the marriage over (i.e. divorce), not having sex with your spouse provides grounds for declaring that the marriage never even took place.

Intuitively, we know that marriages are different from platonic relationships. However, what sets the former apart – indeed, the very basis of marriage – is not the expected outcome of the partnership (kids, economic benefits, etc), but rather, the emotions and nature of the union going into it. Both parties come to the union as equals, of their own free will, because they want to cement an exclusive romantic relationship with the other person. We as a society recognise this by conferring a special status upon their relationship.

But what of the other “non-marital” relationships mentioned? The law should recognise the relationship between the elderly sisters or the carer and dependant, but it doesn’t follow that marriage is the best vehicle through which to do so. For these, a new legal status of “cohabitants” would be appropriate. Although the details lie beyond the scope of this essay, we might imagine the “cohabitants” status as a vehicle that would recognise the closeness of the parties and perhaps the long-standing nature of their relationship by affording them certain legal rights, such as property survivorship, hospital visitation rights, tax advantages, and so on. It makes sense to impose certain conditions, as we do with marriage, including minimum age and capacity. Other limitations that we impose on marriage, such as restrictions based on consanguinity, could naturally be relaxed for applications for “cohabitants” status.

If a right, then a right for all

Many human rights charters, such as the Universal Declaration of Human Rights (Article 16) and the European Convention on Human Rights (Article 12) cite the right to marry as a universal human right. The latter, for instance, states:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

A myriad of provisions in human rights treaties state the belief that all humans are equal, and can derive equal rights. For example, Article 7 of the UDHR provides:

All are equal before the law and are entitled without any discrimination to equal protection of the law.

The argument that follows here is simple: if marriage is a universal human right, then it must be extended to all humans. And to suggest that gay people could elect to marry someone of the opposite sex, and thus are not deprived of their rights by a prohibition on same-sex marriage, is simply perverse, rather like offering a Muslim prisoner the “choice” between eating pork or starving. Giving someone an option that a person of the relevant group would never consider choosing does not provide a “choice” at all.

If it’s correct to suggest that the common basis uniting all marriages is that they are freely entered into by two people as equal partners, with no expectations other than that each party loves the other, then a natural consequence is that the status cannot be denied to anyone who qualifies for it. If we accept that same-sex couples have the same capacity to love, to want to establish long-term partnerships, and to commit to a life-long monogamous relationship, then we must allow these couples the status of marriage. When we deny that, it has nothing to do with our feelings about “marriage,” or anything inherent in the institution itself, and everything to do with discrimination against a set of those who would enter into it.

Drawing the line

This isn’t to suggest that marriage can’t be limited, however. There are perfectly sensible bars to marriage. An obvious one is age. If we accept as a society that a certain activity requires a prescribed level of maturity – voting, drinking alcohol, or being the director of a company, to name but a few – then it’s entirely consistent to limit participation on the basis of age. In the same way, because of the serious implications and ostensible permanence of entering into a marriage, it is right to set a minimum age for the parties entering into it. Similarly, if one of the tenets of our modern view of marriage is that both parties can freely choose whether or not to enter into the union, then setting a minimum age makes it more likely that individuals will be able to take a mature, balanced view of the matter, and less likely that they will agree to a marriage as a result of pressure from their families or elsewhere.

Bestiality

Another legitimate restriction to marriage is based on mental capacity. Comprehension is essential to the medical conception of capacity: can someone understand, retain, and reiterate information explained to them?If a person is unable, by any permanent or temporary lack of capacity, to understand the moral, social, and personal implications of an act, they cannot be taken to legally bind themselves, whether by entering into contracts, by making wills, or indeed, by forming valid marriages. For this reason, the alleged threat of eventual bestial “marriages” is perhaps easiest to deal with. A non-human could never be said to understand or agree to all that a marriage entails. Animals getting married is no more of a threat than the suggestion that horses might sue for unpaid wages.

Polygamy

In the conception of marriage outlined above, both parties enter the union believing that they have found “the one.” The equality of the partners is crucial. Consider the second sentence in Art. 16(1) of the UDHR:

[The parties] are entitled to equal rights as to marriage, during marriage and at its dissolution.

The “equal rights,” it is suggested, are both legal as well as moral. In other words, a spouse should expect not only equal property rights, tax advantages, and so on, but also not to have to share sexual intimacy or romantic love beyond the marital unit. Polygamous relationships, therefore, can be denied the title of “marriage” on the basis that they are inherently unequal. While some might argue that each party in such an arrangement “gets something” out of the relationship – “sure, he gets to sleep with three women, but we three women get help with child care and housekeeping!” – the basis of marriage outlined here believes that neither party should have to compromise. Although one spouse or the other might take the lion’s share in some areas – one primary breadwinner, one primary cook, etc – everything within the home should be shared between those two parties. If marriage recognises ultimate commitment, it necessarily requires the exclusion of all others: it’s simply not possible to “commit” to multiple people in that way. If marriage is about recognising parties as equal partners, then anything other than monogamy will fail to qualify. Whether sexually, emotionally, economically, or in property rights, shifting from dualism to pluralism will necessarily create an imbalance.

Incest

In many respects, the question of what’s wrong with incest between consenting adults is the most difficult. If we say no to incestuous marriages, it’s not because there are too many participants, or that they’re of the wrong species – what we’re effectively saying is, “we refuse to recognise your love.” There ought to be good reasons for this.

That said, a number of factors militate in favour of banning the practice, as most jurisdictions do, and correspondingly refusing to permit incestuous marriages. First, there is an inherent power imbalance in a parent-child relationship, with the child (of any age, even after reaching adulthood) as an intrinsically vulnerable party. For the same reasons that we ban other relationships based on the risk for abuse of power (doctor/patient, teacher/student, lawyer/client), it is reasonable to ban parent-child incest because of the potential for even diffuse coercion and undue influence.

Second, the right to marriage goes hand in hand with the right to form a family. In Art. 12 of the ECHR (above), the two are mentioned in the same sentence. Art. 16(3) of the UDHR states,

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

William Saletan at Slate.com has made the point that sibling and cousin marriage run a high risk of actually undermining families. Not only do they challenge and confuse conventional norms about what those blood relationships entail, but in the event that the union should dissolve, no clean break could be had, as the family link would remain. As he puts it, “You can move on from an ex-spouse or ex-lover, but there’s no such thing as an ex-cousin. How are your parents and your ex’s parents supposed to handle a nasty divorce or a breakup? How can they support their kids without antagonizing their siblings and their siblings’ kids?”

At the same time, other emotionally complicated romantic relationships are entirely commonplace, and we’re free to enter into them. But the all-but-universal taboo against incest across eras and civilisations strongly supports the idea that introducing sexual relations somehow serves to pervert the family set-up.²

Furthermore, it is interesting to note that the vast majority of examples of consensual adult incest arise where the parties have grown up separated from one another. The Westermarck effect, first proposed in 1891 and since documented across many different cultures, suggests that people become desensitised to sexual attraction towards those with whom they live in close proximity (i.e. family members) during the early childhood years. Regardless of the evolutionary purpose behind the Westermarck effect, (one theory suggests it combats the detrimental effects of inbreeding – see below), if we can say that traditionally and under “normal” circumstances siblings grow up together, then the near-total reprehension against incest and the documented Westermarck effect support a conclusion that we are intrinsically psychologically disposed against such relations.

Third, and on a related note, there is a case to be made that incestuous marriages can be banned on the grounds that incest is still considered a psychological disorder. To be sure, there was once a time when homosexuality was also grouped in this category. However, the scientific community’s belief on this has changed, and virtually all respected clinicians and researchers now accept homosexuality as an innate characteristic. Significantly, Dr. Robert Spitzer, the author of the most famous study suggesting that sexual orientation could be changed through “reparative therapy,” renounced and apologised for his study last month. But whereas people can be born gay, or transgendered, nobody is “born” incestuous. If views on incest change in the future following new studies, then there might be a reason to revisit the issue, but for the moment, incest is still considered psychologically deviant.

Fourth, there are good public health reasons to ban marriages between consanguineous relations, and indeed to make illegal (as most jurisdictions do) the act of intercourse between close blood relations. In the most recent Diagnostic and Statistic Manual of Mental Disorders (DSM-IV), the authors write, “The incest taboo makes sense according to present-day scientific knowledge. The offspring from a father-daughter or a brother-sister union have a greater probability of inheriting a pair of recessive genes, one from each parent. For the most part, recessive genes have negative biological effects, such as serious birth defects.”

A predictable counter-argument rejects this reasoning, on the grounds that if we ban incest because it could lead to children with birth defects, then similarly we should prevent anyone with a hereditary condition from marrying or having children, because they too are likely to have children with birth defects.

This doesn’t follow, however. The birth defects that arise from incest will (usually) arise solely because of incest – that is, the recessive traits would have a far lower chance of manifesting themselves if either parent were to reproduce with anyone other than a close family member. Yes, banning incestuous relations is a restriction of rights, but it’s a seriously limited one: 99.9999% of the population are still “fair game.”

On the other hand, banning people with birth defects from reproducing is a far more intrusive restriction on rights. Effectively, it tells a person, “because of the risk of passing on your condition, you can’t reproduce with anyone.”

The argument here is that the “benefit” from banning incest (preventing a predictable and heightened risk of birth defects) far outweighs the cost (no sex with parents / siblings). To ban completely someone from reproducing on the grounds that their children might have birth defects, it is argued, fails on the same “proportional infringement of rights” cost/benefit analysis.

Fifth, we might reasonably assert that bans on incest and incestuous marriages are justified on moral grounds. Article 8 of the ECHR (right to private and family life) provides for interference with this right by a public authority on the grounds of “protection of health or morals,” and we do make laws based on our collective morality as a society, as discussed above. Similarly, where we once banned many practices on moral grounds – sodomy, interracial marriage, witchcraft – the laws have changed because, simply put, we now know better. Attitudes towards homosexuality changed over time because of a wealth of evidence showing that it was an inherent trait, that it was not physically or psychologically damaging to the participants or to society as a whole, and that gay couples can love and commit to one another just as straight couples can. If incestuous couples can ever make similar claims, then society’s attitudes will likely change, with the laws not far behind.

It might be reasonably argued that none of these factors on its own is enough to justify banning incest, and that plenty of counter-examples to each can be found. We do permit marriages where, at least at first glance, there appears to be a possible power imbalance (although arguably not where there is a legal or moral duty of care, as in the examples above). We accept many kinds of emotionally-complicated relationships, and we allow other relationships where certain parental behaviour (e.g. substance abuse) threatens the well-being of future offspring.

We might imagine all of these considerations as comprising a Venn diagram of “red flags” warning us of a potentially risky or damaging relationship. Ultimately, the problem with incest isn’t any one of them on its own, but the fact that incest lies in the centre of the diagram, overlapped and tainted by all of them. This fact and the near-comprehensive historical stigma towards incest call for compelling reasons if we are to overturn the status quo. As yet, science has failed to provide them.

In sum, we can plausibly argue that the supposed slippery slope is in fact a staircase. Just as there are good reasons to step down from restricting marriage to “opposite-sexed religious ceremony only” to “opposite-sexed religious or secular ceremony” and again to “same- or opposite-sex,” there are good reasons not to take the further steps threatened, towards recognising polygamy, bestiality, or incest.

Conclusion

The statement by Keep Marriage Special is wrong on two counts: first, it suggests that gay marriage is of a comparable moral quality to polygamy and incest; and second, it suggests that permitting gay marriage could lead to eventually allowing these things.

The first suggestion, as we’ve seen, is wrong. If we look at what we actually think a modern marriage ought to be – the cementing of a romantic union freely entered into by a couple on an equal footing – then there’s no reason why same-sex couples wouldn’t qualify. There are, however, plenty of reasons to deny recognising as marriages the other types of unions proposed, because as this article has demonstrated, they are of a fundamentally different quality.

The second suggestion is incomplete. Of course the possibility is and always will be there that these things could one day be recognised, but this is simply the nature of legislative supremacy. The notion that compromising now, on same-sex marriage, will be the catalyst leading to the eventual recognition of the other threats, neglects the truth that marriage has compromised and evolved before. The claim that this issue is the push down the slippery slope reflects no genuine desire to establish a necessary safeguard in our legal process, but rather, the urge to deny to some the universal rights afforded by it.

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¹ Ultimately, the court acknowledged the many arguments in favour of same-sex marriage, but decided that the question was properly one for the legislature to decide.

² Although Egyptian pharaohs engaged in widespread incestuous marriages, this practice likely stemmed from dynastic motivations, a desire to keep wealth “in the family,” and a belief in maintaining the purity of a bloodline.

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