The Other Argument Against Same-Sex Marriage

Though the political left generally supports the fight for marriage equality, my colleagues and I have not gone without criticism from liberals for our efforts to eliminate discriminatory marriage laws. Immediately after filing a lawsuit on behalf of four Indiana couples who demand to be married or have their valid marriages recognized in the Hoosier State, my firm was denounced as "carpetbaggers" by a pro-equality blogger for failing to clear our clients' demand for legal equality with the proper authorities --- namely the self-appointed activist elite across the river from our Louisville office. It didn't seem to matter that one member of our team is a current and lifelong citizen of Indiana nor that another is a member of the Indiana bar. When pandering for political points, it's always best not to dig too deep into the facts lest they tempt your conscience toward nuance and full disclosure.

But as attorneys, we don't answer to third parties who think, correctly or incorrectly, that they are the gatekeepers of the proper long-game marriage equality strategy. We answer to our clients, who didn't want to wait for someone else to lead the way in their home state.

Critics who think our clients' timing was off don't truly challenge us. Nor do our conservative opponents, whose arguments about tradition and majority rule have so far lost in every single court to hear them since Perry v. Schwarzenegger and United States v. Windsor. What I personally find more challenging, and more worthy of consideration, are leftist challenges to the very institution of marriage itself.

Where conservatives demand you to think about new things in old ways, progressives challenge you to think about old things in new ways. Such is the case with leftist academic Yasmin Nair and her opposition to same-sex marriage.

Before I go any further, I must say that Yasmin Nair is one of my favorite writers. Ever since Corey Robin (in an excellent response to Nick Kristof's recent drivel about the irrelevance of academic writing) introduced me to her, I have been smitten with her style and her ideas. Perusing through her excellent body of work like a kid in a candy store, I discovered that she is a passionate critic of same-sex marriage. Not because she's a fundamentalist Christian whose concept of "religious freedom" means bending everyone else to her will, but because she is - perhaps rightly - troubled by the institution of marriage in general and how it fits into our "neoliberal" capitalist society. I hope that I fairly convey her arguments here.

It's always frustrating to learn somebody you admire is passionately opposed to the work you do. But nobody benefits from living criticism-free, so instead of dismissing her, I decided to take her points seriously. In a blog post called "Gay Marriage IS a Conservative Cause," Nair writes:

[T]here has never been a left case for gay marriage.  Nothing that the left, progressives, or liberals have stated in support of gay marriage has ever been anything but a profoundly conservative argument.  Gays and lesbians should be allowed to marry for healthcare?  That simply shores up the power of the neoliberal state, compelling people to marry and take on the burden for their own care, instead of creating, for instance, a system that grants life-saving benefits to everyone, regardless of marital status.  This is a matter of “simple equality?”  How is a system that systematically denies those same benefits to single people ever anything but fundamentally unequal?  Denying marriage to some is denying them their ability to love or to have their love affirmed?  If your love depends upon the recognition of the state, your relationship is in greater trouble than you think.  Poor people will somehow benefit from marriage by accessing healthcare through their partners?  Poor people’s problems don’t arise from their inability to get married and in a country without universal healthcare, marriage only compounds your poverty.  And, really, if you’re poor, neither you nor your partner is likely to have healthcare anyway; the last thing you want is to increase the burden on your household by increasing the number of people in it.

Though Nair frames her argument as one opposed to same-sex marriage, her ire is truly with marriage as an institution in general, regardless of who is allowed to participate. That our society reserves certain critical benefits only to those who are willing to enter a very specific contractual relationship (especially one with such a terrifying history), is a cause that concerns her greatly.

In an interview with Joshua Pavan at the web site nomorepotlucks.org, Nair describes the motivation behind a media project she launched provocatively called Against Equality:

[W]e were and are serious about questioning this specious notion of “equality.” The word is loosely thrown about, and it’s assumed that we should all know exactly what that means and what it stands for, but what does it really mean in a country where “marriage equality” is simply another way to ensure that the unmarried should be left out of a basic benefits structure? And what does equality mean when the system set up only ensures an insurmountable amount of economic inequality? ...

Marriage, as configured in the U.S, is neoliberalism’s handiest little tool. It allows for the most intense privatization of resources by placing the responsibility for people’s welfare squarely in the realm of the family. Need health care? If you don’t have a job that gives you that, or have parents who can put you on their plan, or a spouse with a job that allows you access to the same, you’re screwed. In that sense, neoliberalism loves marriage – it’s an effective and economical way to ensure that the state can abdicate from its responsibility for people’s health and well being.

These are challenging critiques of marriage as an institution because the underlying premise is correct: our society allots certain critical services and resources only to those in very specific familial relationships, marriage among them. If you, for whatever reason, can't get a job with health insurance, or don't have parental resources, or are unable or unwilling to be married, you are quite literally on your own when it comes to health care, which even with recent reforms, is unbearably expensive for most Americans. For anyone who believes that our society, with its immense wealth, resources, and manpower, should be providing basic services like health care to all people regardless of their familial arrangement, Nair's comments are undoubtedly relevant.

However, as an attorney who represents clients, and as a citizen who believes the U.S. Constitution is critical to the preservation of individual liberty, my concerns must lie elsewhere. My colleagues and I are foremost concerned with state discrimination - the denial of legal benefits on the basis of arbitrary and irrational distinctions among citizens. We fight unconstitutional laws.

I agree, wholeheartedly, that our society should confer basic benefits like health care to everyone regardless of their employment or familial status. However, I don't agree that actively opposing same-sex marriage will further that desire. Though I embrace many of Nair's arguments, I can't embrace the idea that preserving inequality in one legal institution will help the destruction of inequality in others. Perhaps Nair fears that marriage equality is an endgame in the minds of progressives and that efforts to break down discriminatory barriers across all aspects of our society will end once gay men and women are allowed to receive marriage licenses. I also fear this, to a certain extent, but can't oppose equality because of it.

I absolutely cannot argue that marriage is not a conservative institution. Perhaps it is THE conservative institution. Though its nature has changed over time, it has done so slowly, and only with fiery opposition from the right. But where the state excludes citizens from any institution, conservative, progressive, "neoliberal," or otherwise, the U.S Constitution demands that the state have a very good reason to do so. As courts are so far unanimously declaring, the state does not have any reason at all, let alone a good one, to exclude same-sex couples from marriage.

In my mind, the real question is this: can (or should) the conservative institution of marriage persist in a more fair, equitable society in which critical benefits such as health care are not reserved for only the married? In my mind, yes, it can, and should. And from the perspective of liberty, in which people are free to assemble and form familial units as they see fit, it must persist, but only as one good option among many others. There is no reason to exclude the single, the orphaned, the polyamorous, or anyone else from basic services like health care upon which we all must depend. Marriage should not be the sole (or nearly the sole) vehicle for conferring such benefits. We must expand the benefits of our society beyond the walls of certain state-approved familial relationships.

To that extent, Nair is absolutely correct. But to the idea that same-sex couples should refuse (or actively oppose) marriage equality, I must respectfully disagree.