Did the State Create Marriage?

First published at 365gay.com on July 16, 2010

Last week a U.S. District Court judge in Boston ruled portions of the Defense of Marriage Act (DOMA) unconstitutional, prompting the usual cries of “judicial activism” from conservatives. Among the responses was a statement from Roman Catholic Archbishop Joseph E. Kurtz of Kentucky, chair of the U.S. Bishops’ Ad Hoc Committee for the Defense of Marriage.

“Marriage exists prior to the state and is not open to redefinition by the state,” Kurtz said. “The role of the state, instead, is to respect and reinforce marriage.”

Archbishop Kurtz is partly right—but he’s also wrong in interesting ways.

He’s right that marriage is not something the state invents out of thin air. There is a social institution of marriage pre-existing any particular legal incarnation, and part of what legal marriage does is to acknowledge and protect this prior social institution.

But it doesn’t follow, as the archbishop and other opponents insist, that marriage for gays is therefore impossible by definition. That conclusion is a non-sequitur for several reasons.

First, legal marriage doesn’t MERELY track the social institution, and it can thus have different boundaries. For an analogy, consider the notion of legal parenthood, which is based in a pre-legal reality of biological parenthood but can vary from it. (Indeed, “legal parenthood” is often most important in those cases where the legal parents are NOT the biological parents.)

Second, and related, the causal arrow between the legal institution and the social institution goes both ways. The legal reality reflects the social reality and vice-versa.

That’s one reason why marriage equality scares opponents: the change in legal meaning is bound to effect change in social understanding. Sure, marriage-equality opponents can still teach their children that marriage “really” means something narrower—just as, for example, they can teach their children that a “real” marriage must originate in a church—but the broader legal definition makes those lessons more challenging to impart.

Third, and perhaps most interesting, there is an emerging social institution of marriage that includes gays. It’s time for the law to catch up to that.

Last month I participated in a same-sex wedding for some dear friends. The Presbyterian church hosting the ceremony called it a “holy union,” but just about everyone else called it a wedding—including the grooms’ families. There were tuxedos and champagne and cake and presents and all the other usual markers, including teary-eyed families witnessing solemn vows.

The state where this event occurred (Michigan) forbids legal marriage for gays and lesbians. But each groom’s parents have begun referring to their son’s partner as their “son-in-law,” and everyone around them understands why they do so.

It’s not a legal reality. But it is a personal and social one.

A growing number of people know gay and lesbian couples who have been together five, ten, fifteen, twenty years or more. Legally these couples may not be married, but in virtually every other way they are.

When people vow themselves to each other in the presence of friends and family, set up a household, and build lives together, they create a marriage. That’s how it happened for straight people long before the state started getting involved. And that’s how it’s happening for gay and lesbian couples now.

So the argument that marriage has a culturally determined meaning, independent of words assigned by law, cuts both ways.

Archbishop Kurtz is right when he says that “Marriage exists prior to the state.” He’s just wrong to think that it’s solely heterosexual.