A three judge panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral arguments today in Perry v. Schwarzenegger, the challenge to Proposition 8, California’s state constitutional provision defining marriage as one man and one woman.
The attorneys and judges will discuss many legal concepts, but one big question needs to be answered before we can have a helpful discussion on marriage: Why do we have marriage in the first place? Why do human societies, separated by continents, centuries and culture, overwhelming establish and regulate a public institution called marriage, and define it uniformly as one man and one woman? What is it that their collective experience sees that compels them to have the institution of marriage? Maybe it is because societies want to encourage loving relationships.
Why do societies regulate marriages but not friendships? Friendships are loving relationships like marriages, but societies do not regulate friendships. Although people can find friendships deeply satisfying and emotionally supportive, the government does not care how many friends you have. Therefore, there is something different going on with marriage that compels societies to regulate it. It is not just about loving relationships.
Do societies have marriage so that two people can get society’s or the government’s official ”stamp of approval” confirming that they really love each other? That cannot be correct because when the government gives a marriage license, the officials do not inquiry about the depth or nature of the affections between the couple getting married. The official merely inquires whether the man and woman are old enough to marry, whether they are not already married, whether they are near relatives and whether they have the mental capacity to consent to marriage. It is NOT a legal requirement that two people really love each other in order to get married. Of course, we all want to see men and women join together in deeply satisfying marriages, but society is not concerned about those emotional aspects of marriage. In fact, we see societies where men and women who are total strangers are joined together in a marriage arranged by their parents, so they would not have no time to develop deep affections for one another by the time of their wedding. Therefore, something else is the purpose for marriage.
Possibly, societies created marriage as a social institution to hand out government benefits to people? That cannot be the purpose for marriage, because societies had established marriage long before the rise of the modern welfare state and its benefits programs. Even today, in poor nations or tribes with no welfare-type benefits, they have the institution of marriage. Maggie Gallagher has written that “[m]arriage is not a benefits package….Laws about marriage do not function primarily as an administrative distributor of benefits that help provide incentives to get and stay married, or even help people lead the kind of life they choose.” Therefore, marriage must serve some other purpose. What is it?
Is the purpose of marriage to encourage people to live together because it is more economical for people to share expenses and pool their resources than to live by themselves? That cannot be correct, because a society could encourage people to group together and pool their resources without creating the institution of marriage and defining it universally as one man and one woman. A group of friends, two single moms with kids, aging widows, Army buddies would all receive the same economic advantage by living in the same household. If that were the true purpose of marriage, there would be no reason to limit it to one man and one woman. Because societies generally do limit marriage to one man and one woman, there must be a different purpose for it.
So, what is the purpose of marriage? First, a few basic principles to lead us to that answer.
1. When men and women live in the same society, they will inevitably produce children.
2. A society has a strong interest in ensuring that its children are raised in the most optimal way to ensure the continuation of the society into the future.
3. Children are best raised by their own father and mother, numerous studies have shown, so societies should and do develop social mechanisms to bind children to their own parents, mainly through the institution of marriage. This does not mean that children raised by an unmarried mother or by a divorced parents cannot be raised to be well-adjusted, productive members of society. But the best way to get that is to encourage men and women to raise their children within a marriage which is a lifelong, exclusive relationship.
4. A societal norm of “anything-goes/personal-choice-is-supreme” in marriage and family produces chaos and oppression — societies have learned from their collective experience that if a society allows every person to do whatever he or she wants in terms of family and sexual behavior, the society ends up over time with irresponsible men, exploited women (prostitution, harems, polygamy, pornography etc.), and neglected and undisciplined children. A society cannot succeed over time with such social fragmenting of marriage and child-rearing.
Barack Obama made this point about the devastating consequences in the lives of children when fathers neglect raising them, in a speech he gave on June 15, 2008, the day before California started granting same sex marriage licenses for a five-month period:
We are called to recognize and honor how critical every father is to th[e] foundation of the family. They are mentors and role models… But if we are honest with ourselves, we’ll admit that what many fathers also are is missing – missing from too many lives and too many homes…. We know the statistics – that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison… We need [fathers] to realize that responsibility does not end at conception. We need them to realize that what makes you a man is not the ability to have a child – it’s the courage to raise one.
Therefore, the collective experience from a consensus of world cultures is that the purpose of marriage is to raise the children that will inevitably be born in the best social environment possible, a union of the child’s own father and mother which is lifelong, monogamous and exclusive. This sustains a society’s continued survival into the future. Or, to put it another way, the best way to operate societies in the present and sustain them into the future is to funnel the sexual behavior of their men and women and the inevitable production of children into marriages of their own parents, one man and one woman. Marriages defined this way provide the most secure and effective social environment, one where the entire spectrum of humanity, man and woman, live together in harmony, to nurture the next generation in the norms and principles of the society. Those children grow into adulthood and fulfill the same process. This is the way societies sustain themselves into the future.
That means the purpose of marriage is NOT self-fulfillment for individuals or governmental recognition of their “commitment.”
These important foundational questions about the purpose of marriage must be answered before addressing either the constitutionality of marriage, or whether it should be redefined. If a court wrongly thinks that the purpose of marriage is to supply self-fulfillment and happiness for individuals, they will answer the constitutional questions inaccurately. It will be important to watch for how the judges and attorneys in the Perry oral arguments address this important question of the purpose of marriage.