The Argument From Arbitrariness

Yesterday, a friend suggested to me that there may be an objective, valid, non-religious argument in favor of a ban on same-sex marriage. He doesn’t actually believe this himself, but he figured that it was a reasonable enough argument. It goes like this:

Marriage is completely unnecessary. People can have kids without being married, they can raise kids without being married, people can own property together without being married, people can divide up jointly-owned property when the split up without being married. So marriage exists only by social convention and tradition — it is, in other words, purely arbitrary. Therefore, there is no particular reason why it needs to be evenhanded in its arbitrariness and we can limit it to opposite-sex couples if we want.

Query if this is not a more honest re-telling of the argument that “marriage has always been between a man and a woman.” I think that is a little bit different, though; that argument remains silent on the issue of why marriage has always been between a man and a woman. That argument rests its weight entirely on the weight of historical precedent and does not inquire further into what social goal is advanced by that precedent. The “don’t get arbitrary with my arbitrariness” argument differs from the “historical precedent” argument in that it says there is no objective social purpose advanced by limiting marriage to heterosexuals; this is simply another arbitrary facet of an already arbitrary concept, so no harm is done to anyone because the whole thing is arbitrary to begin with.

My friend was tickled by the argument because it can never be made by the opponents of same-sex marriage. Those who would “protect traditional marriage” by denying marriage to same-sex couples must insist that they are protecting something valuable and important. Conceding that marriage is an arbitrary and irrational institution denigrates its value to the point that the battle they seek to win is simply not worth fighting.

I initially liked the argument. But after some thought, I realized that it really doesn’t work. The reason is that it blurs the line between marriage as a legal institution and marriage as a cultural institution. As a cultural institution, I think the argument is correct. There is no objective need for marriage in any particular culture, and indeed it does not take much looking for an anthropologist to identify other cultures in which the western European model of lifelong, heterosexual, monogamous, non-consanguinious marriage is not adhered to. Polygamous marriages and recognized concubinages are perhaps the easiest sorts of cultural institutions to find in non-Western cultures. Indeed, if one looks through western history, one finds many examples (particularly regarding the political and personal of nobility) where monogamy and consanguinuity are ignored.

But as a legal institution, marriage becomes complicated because it is not a two-party transaction. Legally, marriage involves the government. It shifts presumptions about the acquisition and disposition of property and debt. It provides for alternative methods of becoming liable for and paying one’s taxes. It provides for differing, and generally enhanced, eligibility for dispensation of social welfare benefits from the government. It provides for certain rights and assurances about the ability of the marriage partner to make binding decisions affecting one or both spouses like authorizing or withholding medical care and rights of inheritance without having to assume the burden of making alternative arrangements. So because the government is involved in the legal institution of marriage, the government has to treat people equally and not grant or withhold these kinds of preferential treatments on an arbitrary basis.

Here, of course, we come back to the concept of a civil union or a domestic partnership. If the government were to create such a “parallel institution” that really did provide for all of the same legal rights as marriage, then a case could be made — a case that until a few months ago, I would have made and that I still consider to be a non-frivolous argument — that the legal demands of equal treatment by the government would be satisfied.

But at that point, the “parallel institution” would so closely resemble marriage, that the real question would become “What’s the point of even using a different label?” The only answer to that question would be to preserve the social prestige associated with the label because of the arbitrary cultural distinction attached to it — and there, again, we would see a disparity in treatment, an enshrinment in law of a different and inferior status to homosexual couples as compared to heterosexual couples.

The alternative would be to not have marriage as a legal institution at all. This would not change the cultural institution of marriage, of course; it would mean that everyone, gay or straight, would be equally burdened with having to get durable powers of attorney, jointly acquire and dispose of property, and lose eligibility for joint benefits from the government like the filing of a joint tax return or joint entitlement to Social Security. These legal benefits associated with marriage, however, have been integrated to a very substantial degree into our collective social fabric and into peoples’ economic plans so as to provide for their futures, that a significant disruption would take place were the legal institution of marriage to be abolished altogether.

Put more succinctly, making marriage a purely cultural phenomenon and abollishing it as a legal institution would do more harm than good. If the choices are permitting same-sex marriages or not allowing any marriages to happen, it’s better to permit same-sex marriage.

Blurring the distinction between marriage as a legal institution and as marriage as a cultural institution seems to fuel all of the arguments against same-sex marriage. For some reason, the opponents of same-sex marriage do not distinguish — indeed, they are frequently willful in their refusal to distinguish — what happens at city hall from what happens in their churches.