The Mulling Stone

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The Importance of Discrimination

Last Wednesday’s legal decision against Proposition 8 and in favour of same-sex marriage in California has been met with great joy by many, who herald it as a milestone for necessary civil liberties for homosexuals. Even a number of people I know who disagree with homosexual practice on moral grounds have voiced support for the ruling, seeing it as a victory for equal rights. I was disappointed by the news, though not in the least surprised.

Few cases are less likely to receive a charitable hearing than an argument for discrimination, but that is what I intend to provide here. There was a time when discrimination was not the dirty word that it is today, a time when it primarily denoted the ability to make wise judgments, discerning fine but significant distinctions. This usage is maintained when we speak of such things as a discriminating palate. Recent decades have seen the term fall into opprobrium. The fact that certain acts of discrimination between groups or classes of persons are unjustifiable and morally reprehensible has often led us to eschew acts of discrimination altogether.

The denial of gay marriage is an obvious case of discrimination. For most people, this is enough: where discrimination exists, it must be uprooted. However, not all discrimination is without justification; certain acts of discrimination are necessary for the health of society. People of differing sexes, sexual orientations, nationalities, cultures, classes, ages, and various sorts of relationships are not the same, and occasionally their differences are relevant and important bases for discriminating between them in certain matters. For instance, when it comes to most sports, practicing segregation on the basis of differences in potential levels of performance of men and women is hardly a case of unfair discrimination. In such a case it is fairly apparent that differences between men and women have bearing and require that we discriminate.

The Right Being Denied

In the case of gay marriage, the argument is often advanced that the traditional form of marriage discriminates against homosexuals by not permitting them to marry. Strictly speaking, this is not true. In this respect, homosexuals have no more or less rights when it comes to marriage than straight people do: everyone has the right to marry someone of the opposite sex, and no one has the right to marry someone of the same sex. It is argued that homosexuals are discriminated against by not being permitted to marry the spouse of their choice, or by not being permitted to form marriage unions between consenting partners. However, no one has the right to marry the person that they want, and a number of forms of marriage unions between consenting heterosexual partners are forbidden.

Of course, the grievance can be expressed in terms of homosexuals not generally having the right to a form of marriage union that conforms to their sexual orientation. The question is whether this is really a meaningful ‘right’ at all. Although traditional marriage does give heterosexuals the chance to enter into heterosexual relationships, it is far from clear that such rights categories provide us with an appropriate handle on the institution of marriage. As an institution, marriage is largely indifferent to the demands and the desires of the individuals within it. The requirements of the institution do not exist to bestow rights upon certain sets of individuals, or to deprive others sets of individuals of them. As an institution, the purposes that marriage serves go beyond the individuals who enter into the state. This is why marriage gives people a chance to transcend themselves and enter into something greater. The institution of marriage has never existed to conform itself to certain forms of relationships, but to conform certain forms of relationship to marriage.

Understandably, none of this will sound satisfactory to homosexuals who feel alienated and marginalized by society’s primary institution. Marriage as it currently exists obviously forms a barrier to the normalization of homosexuality, and to the full integration of homosexuality into the society. We must question whether a form of marriage that is exclusive to heterosexuals is contrary to a just and inclusive society.

Various possible courses are open to homosexuals and others wishing to overcome this state of affairs. The first possible course is that of demonstrating that homosexual relationships are, in fact, conformable to the relationship of marriage and that discrimination against them is unfair and unjustifiable. The analogy of the ending of restrictions against interracial marriages is often appealed to in this context. The second possible course is that of openly arguing for the dismantling, either entirely or merely partially, of the institution of marriage, moving towards a post-marriage society, with new institutions. The third course would be that of formalizing the deinstitutionalization of marriage within our society, withdrawing the privileges that the state bestows upon married couples, among other things. Further courses include the establishment of new institutional forms to accommodate homosexual unions, alongside traditional marriage, but distinct from it.

The discrimination associated with marriage is less directed against certain classes of persons than it is against certain forms of relationships (even heterosexuals are unable to consummate a marriage by means of acts of sodomy), although this discrimination is obviously far more restrictive for certain classes of persons than for others. More strictly speaking, traditional marriage is a positive discrimination in favour of a particular form of relationship. Indirectly it discriminates for and against other things, but this is its fundamental discrimination. Rather than assuming that this positive discrimination is unjust, it behooves us to determine the grounds of the discrimination. Once we have recognized these grounds we should be able to establish whether or not differences between committed relationships between homosexual couples and opposite sex couples are a valid basis for discrimination between the two.

The Framing of the Debate and the Decay of Marriage as an Institution

At the outset it is worth making some comments about the way that this debate is generally framed. Arguments against gay marriage often invoke moral judgments against homosexual practice as prominent bases of their claims. Opposition to gay marriage is commonly perceived to arise from religious grounds or unveiled homophobia, and is generally presented as such by gay rights campaigners. Although there are undoubtedly religious arguments that are brought forward against gay marriage, as an extension to religious opposition to homosexual practice, there is no reason why opposition to gay marriage can’t co-exist with support for homosexual practice. By portraying opposition to gay marriage as motivated by religious concerns (which are presented as a diaphanous veil for homophobia), proponents of gay marriage have a convenient way of discrediting the arguments of their opponents. Opposition to gay marriage can be presented as irrational and bigoted. However, there is a clear case to be made against homosexual marriage that doesn’t invoke such things as religious prohibitions on homosexual practice.

Arguments in favour of gay marriage have tended to focus on the equality of homosexuals to heterosexuals, their right to social approval and recognition of their relationships, and their rights to the happiness and security that such relationships offer. Others point to the greater integration into the shared social project of marriage that gay marriage would afford, and the manner in which it would enable homosexual couples to participate in something greater than their own immediate relationship, including homosexuals as active members of the broader community.

The latter argument, it seems to me, is the strongest, precisely because it goes against the general tendency of the other arguments to present the telos of marriage almost exclusively in terms of the happiness and fulfillment of the partners within the relationship. That said, I believe that this article will demonstrate that even such a position cannot be justified.

Marriage is frequently presented by gay rights arguments as something that exists almost wholly for the sake of the partners within it, rather than for broader social purposes. This privatization of marriage hardly originated with the gay community; heterosexuals have increasingly understood their relationships as close personal relationships, whose parameters are set purely for the sake of the partners within the relationship, rather than for broader social purposes. The loss of traditional social norms and community expectations surrounding marriage has led to the weakening of the institution.

In many respects what we have been witnessing over the last few decades has been the gradual decay of marriage as an institution. As an institution, marriage is a social form which provides norms, social purposes, structure, and permanence to a relationship between two persons. As an institution it transcends the intentions of the individuals that enter into it, and provides standards for their behaviour. However, the understanding of marriage as an institution seems to be receding in a society where people regard the norms of marriage as increasingly flexible, the primary determinant being the desires of the partners. The institutional dimension of marriage hasn’t disappeared, of course. However, it is taken far less seriously. It is exceedingly unlikely that the admission of gay marriage will entail a resurgence of the institutional character of marriage, even in a reconfigured form (the level of incidence of open relationships among homosexual couples is hardly going to strengthen the marital values of fidelity and monogamy, for instance).

In its place marriage is increasingly perceived as being founded on the love of the marriage partners for each other, within a relationship whose parameters are determined by their consent, and involving no greater social goals than those chosen by the partners. Marriage involves society’s bestowal of its imprimatur upon such relationships. Given such an understanding of marriage, the fact that society would deny its imprimatur to homosexual relationships seems quite unfair.

Rather than seeing marriage in such a manner, I suggest that the perspective of marriage as an institution is crucial. By framing marriage as the social imprimatur upon a close personal and sexual relationship between two persons, the notion that granting marriage to homosexual couples would harm marriage in general can easily be presented as ludicrous. How can permitting Mike and Simon to get married harm the marriage of Lucy and Jake? However, when we regard marriage in institutional terms, and especially in terms of the broader social purposes that it fulfills, the reasoning becomes far more clearly apparent. Permitting Mike and Simon to marry is only possible within certain understandings of the institution of marriage, and such understandings of the institution of marriage can have long term influences upon the shape and success of the institution as a whole.

Rather than focusing upon the rights of individuals, therefore, the focus of my argument will be upon the demands of the institution of marriage and the reasons for those demands. The following are some of the most significant differences between heterosexual marriage unions and homosexual unions and the reasons why they justify discrimination between the two.

The Qualitative Difference Between Homosexual Sex and Marital Sex

Traditional marriage provides a secure, committed and loving framework for the sexual act by which society reproduces itself. No matter how loving and committed a homosexual relationship may be, homosexual sex is necessarily sterile. The equation of a naturally sterile form of sexual relationship with a naturally procreative form of sexual relationship should be questioned, and especially when we are dealing with public recognition, celebration, and subsidization of such relationships.

Societies and governments generally incentivize and subsidize marriage in various ways. If procreation were removed from the equation, however, it is highly unlikely that marriage would receive the benefits that it does. Married people are not merely privileged over homosexuals in committed and non-committed relationships, but over other heterosexuals in non-married relationships, and over single people. Marriage isn’t privileged in order to make married people feel better about themselves, but because marriage serves the social purposes of the conceiving and raising of children in a healthy manner.

Religious and civil definitions and restrictions on marriage have traditionally tended, to some degree or other, to limit the access of couples who cannot procreate to the institution of marriage. For instance, there is the general traditional requirement that marriage be consummated by penile-vaginal intercourse, other forms of sexual intercourse not being sufficient to consummate relationships. Refusal to consummate, an inability to consummate on account of impotence, or some other condition existing at the time of the marriage, can be grounds for annulment.

The fact that marriage is ordered towards procreation by both religious and civil traditions is crucially important for our understanding of why marriage has been privileged over other forms of relationships by society. While it is obviously true that not all heterosexual marriage partners are fertile (couples who marry in old age, for instance), there are important distinctions to be observed between such marriages and homosexual unions. In the case of homosexual partnerships, sterility is universal; in the case of heterosexual marriages, childlessness is the exception, rather than the norm.

Furthermore, in the case of heterosexual unions, even where infertility exists, the union can be consummated in an act of sexual union that is naturally apt for reproduction, even though, by reason of extrinsic factors, it may not prove fecund in that particular relationship. Penile-vaginal intercourse is integral to traditional definitions of marriage, precisely because it is the form of sexual intercourse that is apt for reproduction (in most religious and legal traditions, homosexual marriages could not be consummated, as only penile-vaginal intercourse is sufficient to consummate such a union). The significance of the act of penile-vaginal intercourse is not shared by other classes of sexual acts (primarily, but not merely on account of its association with procreation) and so committed relationships in which such intercourse cannot or does not occur do not have the same privileges.

The requirement of penile-vaginal intercourse for valid marriage will almost certainly scandalize advocates of homosexual marriage. At first glance it may appear arbitrary, or grossly and unfairly discriminatory. It rules out homosexual unions from consideration as marriages at the very outset, arguing that homosexual marriages may not merely be inadvisable or impermissible, but may actually be impossible (even where homosexual unions exist they cannot be consummated, and so must belong to a different class of relationships from that of marriage), and presents forms of homosexual intercourse as somehow inferior to heterosexual marital union. This cannot be denied: it does all of these things. However, it is neither arbitrary – the connection between penile-vaginal intercourse and procreation sets that form of sexual union apart from others – nor is it unfairly discriminatory – it discriminates, but the discrimination is on the basis of an extremely pertinent difference.

Sexual intercourse and marriage are obviously about much, much more than reproduction, but reproduction can never be removed from the picture. Penile-vaginal intercourse has generally been regarded as a sine qua non for normal marital union, in large part on account of this connection. The act of penile-vaginal intercourse has a symbolic and practical significance arising from this connection (though also from the peculiar physical compatibility in difference that it manifests) that homosexual forms of intercourse could never have.

The arguments against homosexual marriage on the basis of the connection between heterosexual union and procreation are often dismissed on the basis of an appeal to the case of infertile couples. This is a rather extreme case of missing the forest for the trees. Using a comparison between the universal and intrinsically infertile state of homosexual relationships with the extrinsically infertile state of certain exceptional heterosexual relationships as a basis for including homosexuals in marriage is poor reasoning. The comparison should not be between exceptional cases of one form of relationship and the universal case in another form of relationship, but between the two differing forms of relationship themselves. While the differences may not be immediately apparent when we place carefully chosen individual cases alongside each other, once we compare the forms of relationship and the manner in which they function in society, the differences are strikingly apparent. The appeal to the case of infertile couples is a sleight of hand, used to distract the attention away from contrasting forms of relationships and their markedly different effects upon society. Granting benefits and a status to committed relationships that involve such intercourse that are denied to committed homosexual relationships is perfectly commonsensical.

The discrimination is between forms of sexual relationship – between a fertile form and a sterile form – rather than between sterile and fertile individuals. On top of the host of practical reasons why it would be extremely difficult to exclude infertile couples from marriage, the crucial detail is that the form of the relationship between infertile heterosexual couples and fertile couples is exactly the same (although the same is not true in the case of unconsummated marriages). The fact that acts of penile-vaginal intercourse do not always result in conception (and in the case of certain relationships never will) does not empty the form of sexual relationship of those aspects of its significance that derive from the connection between it and procreation. Even where infertility rules out the possibility of offspring, heterosexual marriages enshrine the centrality of this form of sexual act and of the union of a man and a woman to human society.

The institution of marriage is not about ensuring that every single marriage produces children, on that every act of intercourse could potentially result in conception, but about ensuring that the form of relationship is one that is apt for the conception and raising of children, in addition to serving the partners and society in other respects. To this end it upholds a form of relationship, rather than rigorously checking every couple entering into the state to ensure that they will effectively procreate within the form of the relationship. This form of relationship serves society on many levels, most notably in procreation and raising children. If marriage involved the requirement of prior fertility tests for couples, it would not merely be impractical, but would involve an intrusion upon the form of the relationship, potentially subordinating the form (which serves multiple purposes) to just one of its functions.

Marriage privileges a certain form of naturally fertile sexual union over forms that are essentially, inescapably, necessarily and intrinsically infertile. No number of appeals to exceptional cases can undermine this fundamental truth. Even if some were to claim that this reasoning cannot justify the inclusion of infertile couples in marriage – though their inclusion is quite justifiable – they are still left with the question of why society should give the same benefits and status to forms of sexual relationship that are intrinsically sterile that are given to forms of sexual relationship that are intrinsically procreative.

From a social perspective the subsidizing, incentivizing and general privileging of marriage would make considerably less sense if procreation were disconnected from sexual intercourse. At the heart of the equation of heterosexual marriage with homosexual marriage is the implied claim that penile-vaginal intercourse is no more socially significant an act than anal or oral sex, for if such intercourse were socially significant to a degree that homosexual intercourse were not, the notion that there was no basis to discriminate between same sex and opposite sex couples when it came to the public social recognition of marriage would collapse.

The Public Nature of Heterosexual Marriage

The connection between the procreative character of the sexual union it enshrines and the public recognition of heterosexual marriage does not exist purely on account of the fact that procreation is necessary to society’s survival. Procreation renders heterosexual intercourse a public matter. As Robert Jenson remarks, ‘however private the act of sexual union may indeed be, its existence and character is vital public information.… [T]he union of man and woman is the community on which all community depends.’ The same does not hold in the case of homosexual intercourse. Although lovers of any sexual persuasion will generally and quite naturally want to express their love for each other publicly, homosexual relationships simply do not have the public import that heterosexual relationships do.

The connection of heterosexual intercourse with procreation renders the existence of a sexual relationship between heterosexual partners a matter of public significance. The public recognition and celebration of the sexual character of the relationship between a married couple needs to be regarded in this light. Apart from gossip, prurient interest, and perhaps understanding the surface dynamics of relationships in which the partners are involved, why should society have an interest in the private act of sexual union that occurs between a couple? Why should the occurrence of this private sexual union be regarded as so important to the public recognition of the relationship that public recognition can frequently be withdrawn or denied in its absence? Precisely because the most private act of heterosexual marital union is an act which has potential consequences that are inescapably public.

As Jenson observed, the private union between a man and a woman is the union that lies at the source of all society. The private union of heterosexual marriage is publicly acknowledged chiefly because it is the means by which a new public will be formed. While discrete instances of infertile relationships obviously exist, the fact remains that the act of heterosexual intercourse is responsible for the conception of virtually every human being that has ever lived and homosexual intercourse is not responsible for a single one of them. The difference between heterosexual union and homosexual union is stark in this respect. Even though the partners might wish to express publicly their love for each other, there is no reason why the existence of a sexual relationship between a same sex couple should be seen as a fact that is of ‘vital public information’. Despite the romantic understanding of marriage that is prevalent in our culture, the institution of marriage does not exist primarily as a means by which persons can express publicly their love for each other and have society pat them on the back.

This is one of the reasons why the deinstitutionalization route is so difficult. Marriage is institutionalized within our society on many levels, not least through the status that it is given by religious communities, and within the law. Marriage is politically and legally empowered and regulated because it is a form of relationship that naturally renders itself public. The institutionalization of marriage is bound up with the connection between marriage and the family, which is in turn bound up with the relationship between heterosexual intercourse and procreation. Due to the relationship between marriage and the family, it is exceptionally difficult for marriage to be reduced to the realm of a mere private arrangement between two parties. By virtue of the family marriage renders itself public.

As far as public recognition and acknowledgement is concerned, there is no more reason for a homosexual couple to be recognized as a partnership by society than other forms of long term committed cohabiting couples (e.g. two brothers, a disabled person and their carer, two platonic friends – about a quarter of non-married people co-habit in the UK). The fact that the partners have had or are having sex together is completely unimportant as far as wider society is concerned (which is one reason why civil partnerships, at least in the UK, do not have requirements for consummation, which are incredibly detailed in the case of marriage). The public significance of the fact that a sexual union exists between a man and a woman is categorically different from the public significance of the fact that a sexual union exists between two men.

Perhaps this is one of the reasons why sterile forms of sexuality – both heterosexual and homosexual – are almost wholly responsible for the flaunting of sexuality that we witness in so many quarters of our culture. A heavily sexualized culture is almost invariably a largely impotent culture. Marriage presents sexuality as a secret shared between only two persons. Of course, people know that the marriage partners are heterosexual, but the heterosexuality of the marriage partners is not generally paraded, as it is in the case of macho and hook-up culture, for instance. In a fertile relationship, one’s sexuality does not have to parade itself publicly or engage in social or political activism to achieve powerful public results. The sexuality of the marriage partners declares itself to the world in the form of the family. No one needs to own up publicly to the fact that they are straight for us to know that there are heterosexuals among us.

The power of heterosexuality in marriage culture is immediately apparent, even though the sexuality itself remains a secret between two partners. Such an approach is only possible for a sexuality that isn’t impotent. In macho and hook-up culture, by contrast, one’s heterosexuality must be rendered overt, because when one rejects marriage and the family as the means by which one’s sexuality can achieve a powerful public effect, one must resort to rendering sexuality itself explicit in order to assert its power. The fact that homosexuality lacks the ability to exert clear public power by means of private and secret sexuality is a possible reason why so many homosexuals feel the need to parade their sexuality, to put it in society’s face, and form a homosexual lobby.

The restrictions that the institution of marriage places upon sexual activity within marriage, especially in terms of the traditional requirements of fidelity and monogamy and the requirement of consummation, depend upon the connection between marriage, procreation, and family for much of their cogency. Certain forms of sexual behaviour are regulated or proscribed because the relationship between the partners is a relationship that provides a context for other relationships, and has public significance. Infidelity is not merely cheating on your partner, but undermining the stability of the family.

Contraceptive views of sex encourage the notion of sex divorced from public consequences. Coupled with the emotional prophylactics provided by the hook-up culture, sex is frequently presented as being an act with no necessary meaning beyond the pleasure of the moment. Sex is repackaged as an act freed from its natural potential consequences – like Coke Zero promises the Coke taste without the calories – both men and women are freed to engage in more ‘irresponsible’ sexual activity (i.e. absolved from any responsibility for the act actually leading to conception or other future consequences). This repackaging of sex encourages the greater cultural detachment of sex from the contexts within which it was historically socially countenanced. Both men and women are now freed to treat sex like a gun which is almost certainly unloaded, rather than as something to be treated carefully primarily within the context of marriage, as the place where the sexual act can be undertaken responsibly. Those of us who refuse to engage in sexual intercourse outside of the bond of marriage are presented as repressed, unbalanced, or otherwise abnormal.

Where sex is disconnected from procreation, and seen as an act undertaken purely for pleasure, attempts to legally or culturally restrict or curtail people’s sexual freedom will be regarded as oppressive and intrusive. The sterile and contraceptive views of sex that came with sexual liberation were accompanied with a drive to privatize and deregulate sexual behaviour (I will go on to argue that, perhaps counterintuitively, the deregulation of sex goes hand in hand with political tyranny).

The idea that society has the right to expect lifelong fidelity and monogamy from a married homosexual couple (even though there are plenty of homosexual couples that do wish to uphold lifelong monogamy in their own relationships) is not something that will be welcomed by gay marriage advocates in general. Homosexuals will protest that, as their sex is without public consequences, society has no right to police it, or expect it to conform to values and standards that transcend the consenting partners. In this protest they expose the weakness of their claim to marriage: if homosexual sex is indeed without public consequences – in contrast to marital sex within heterosexual relationships – then what right do they have to expect their sexual unions to receive public acknowledgement, recognition, and celebration?

Outside of marriage, such a sterile and contraceptive view of sex is dangerous enough to society – it is such a view of sex that has hastened the breakdown of society in many areas of the underclass, where illegitimacy, single motherhood, fatherlessness and promiscuity have become the norm, and the abuse of partners and children rampant. However, tolerating the contraceptive and sterile view of sex within the bond of marriage itself will have a devastating effect upon the institution. We should not kid ourselves: sterile and unpoliced sex is the homosexual norm and the heterosexual ‘breeders’ who submit to the norms of public sexual morality demanded by marriage in order to enjoy the bourgeois respectability that it offers can often be spoken of as if they were a different species entirely. While recent decades have seen many quarters of the gay movement seek to distance themselves from the sexual outlaw status by which the movement previously characterized itself and claim the socially respectable status that comes with the normalcy of marriage, the view of sex that is central to the movement is still radically and necessarily contrary to the view of sex that undergirds traditional marriage. The movement towards gay marriage is a movement that generally seeks respectability without the submission to the sexual norms of society enshrined in traditional marriage. In fact, these norms may well be treated with even greater hostility when homosexual couples find themselves directly subject to their demands.

Considering homosexual unions as marriages will tend to encourage the deinstitutionalization of sexual intercourse within marriage in general. Marital sexual intercourse is only institutionalized because it is of public import, because the manner in which consenting married couples use their bodies in the privacy of their own homes has bearing upon wider society. This empowers but also regulates the sexual partners. Not only will the deinstitutionalization of sex threaten the integrity of the family (while an open marriage between two homosexuals poses no immediate threat to society’s fabric, open marriages between heterosexuals undermine the stability of the family), it will also take away from the power of marriage as an institution.

Society subjects marriage relationships to certain norms because of the manner in which marital intercourse can render itself public. The removal of the sexual norms of marriage can only occur at the expense of bond between procreation and childrearing. By refusing to approach sex as an act with public consequences and hence subject to public norms, we absolve ourselves of the responsibility for any public consequences that might arise. The deregulation of sex is bound up with the family’s forfeiting of control over childrearing.

Regarding homosexual unions as marriages hastens the sterilization of our concept of marital sex. Consummation of marriage in the form of a reproductive act is obviously impossible in the case of homosexual unions and cannot be demanded. Sex within marriage will increasingly be presented as a matter that purely concerns the partners themselves, and which cannot be made subject to the institutional or legal requirements, or demands of public morality that transcend the parties within the relationship. The downplaying of the ideal of sex as an act undertaken within the context of a lifelong exclusive commitment, subject to social standards of behaviour, and attended with the possibility of conception and the weighty responsibilities that that entails could have serious consequences. As the homosexual lobby attacks the ways in which society renders the sexual activity between two married partners a matter subject to public judgment and norms, the bond between parents and their children will be further weakened.