I just read a book review on the American Conservative Magazine website. The book written in four hands (Maggie Gallagher and John Corvino) is entitled “Debating Same-Sex Marriage”. According to the review, their point is not to get in agreement, but to show the differences between their positions. Although they are exercising an important role in this debate, that happens worldwide, not only in America (even in my beloved Brazil, but we can talk about what is happening there later), the premise that there is no common ground from which one could start to negotiate a solution is striking. If there is no possibility of accommodation, the only way to solve the problem is to impose a position over others, which is not socially healthy. Based on the review, I will try to find a common ground from where both sides can meet and negotiate a solution.
First of all, I need to say that I agree with Gallagher: “Marriage is intrinsically a sexual union of husband and wife, because these are the only unions that can make new life and connect those children in love to their co-creators, their mother and their father.” The very idea of marriage is linked to procreation and family, and that is prior to law. The law of marriage comes from such recognition, it does not give it. Although I do not know if she states this in the book, marriage where the couple has no interest in becoming a family is a “marriage” in name only, which is the same to say that is no marriage at all; and, that is valid even for couples formed by people of different genders. Therefore, the concept of “marriage” goes beyond the “one male + one female” statement. I would never honk for that. Please, do not insist.
Well, this puts me in an awkward position. After all, I am stating that a considerable amount of marriages out there are, or at least should be, not marriages, even if between men and women. But if not, what are they, after all? Relationships that have no interest in procreation, they are SOMETHING, and this is undeniable. The current law of the United States even considers some of them to be marriages, which shows there is a social interest in such recognition. But the law only recognizes marriages in cases of unions between men and women, even if there is no intention of the couple in having children. This brings the question: what is the difference between such relationships and those between people of the same sex?
Andre Archie gives a hint of the answer in his review: “If marriage refers to a natural kind that consists of a mother and a father, and it is not created by law because it is prior to law, why does the law regulate marriage? Because civic order, according to Gallagher, has a stake in regulating the sexual behavior of men and women for the purpose of ensuring that children are raised by married mothers and fathers in a context that provides a sense of familial permanence, monogamy, and fidelity.” As I will show, according to this quote, the answer to the question above would be “none”.
Although I would again agree with Gallagher here, I believe she falls short on the matter. I believe civic order has a stake that goes beyond that. This is easily noticed since no married couple is obliged to have kids, in the first place. So if you take away the children part of her statement, what remains? Monogamy and fidelity. That is where Corvino’s position on the book comes in. He touches an interesting problem: there are people that want the recognition of their relationship with people of the same sex the same way law already does with people of opposite sex but has no interest in becoming a family.
This is clear in Corvino’s definition of marriage, one with which I disagree. For him, marriage is a “couple’s commitment to each other and to society that they are each other’s main line of defense in the world, for life. It [marriage] is an exclusive commitment, not in the sense a spouse doesn’t care for other people (children, friends, parents), but in the sense that only one person can be your Number One Person.” This definition works perfectly for marriages that already are recognized as such, where there are no children involved. But, I agree with Gallagher that marriage and family are inseperable.
However, and here it is what I want to stress, there is a point that Corvino makes that is already in Gallagher’s position: one can identify a bond with someone else (monogamy) that is expected to endure (fidelity). Monogamy and fidelity, therefore, are the common ground where an agreement between both parties is possible. People can get together and share a home for different reasons, and those reasons are enough to the recognition of the validity of such relationships. They are not marriage, because Gallagher is right, but they are very close related to it, as Corvino shows. There is an undeniable resemblance between them. They are all sexually based: there is a mutual sexual interest on them; and they are friendly based: there is a mutual trust and care on them. And if those are enough for the law to establish the validity of such relationships when they are made between men and women, there is no reason to treat differently others just because they are made between men or between women.
This is an actual social and political problem that needs to be addressed. The challenge here is: how to protect “marriage” while, at the same time, recognize the union of people that cannot, or do not want to, become families [the question of adoption notwithstanding; let’s not go so far]? The only solution I could find, and it has its own problems, I admit, is the complete separation of “marriage” and “civil union”. Law, that is, statutes made by governments, can only regulate what “civil unions” are because they have interest in that. Marriage, on the other hand, should be a RELIGIOUS matter, sacred as it is. In such a case, all marriages would be civil unions, but the contrary would not be true.
Politically, I would defend that civil unions should remain monogamic, and that divorce should be a very difficult thing to obtain, because they should be as close to marriage as possible, although I know that the former is easier to get support for than the latter. Hence, my position on the matter is in favor of changing the law to subtract the word “marriage” altogether. Use “civil union” instead, and give same-sex couples the same rights [adoption being another matter] of different-sex couples. This way, I believe the gap between Gallagher and Corvino can be bridged. The notion of marriage being sacred, an essential part of family and related to the perpetuation of the species is preserved, and, at the same time, the interest of those that do not want to start a family but still want to share their lives with someone else is attended.