Proponents of gay marriage assume that denying homosexual couples the right to marry is self-evidently discriminatory. Hence, we are tempted to think that nothing further need be said and the controversy should be at an end. But it is important to reflect more profoundly on this question, especially since there has not been much clarity in the public discussion of it. Is opposition to gay marriage really discriminatory?
The starting point is this: Marriage was not created by the state or by human law, but by individual men and women, who came together to form a relationship that by its very nature is oriented towards procreation and the raising of children. When fully formed political communities evolved, the law recognized marriages and gave them a certain public status -- not because they were personal relationships or friendships, but because, as was obvious, they were necessary for the community's survival. So marriage and the family were and remain a matter of vital public concern.
Just as the state did not invent marriage, so it did not invent the rights and obligations of husbands and wives toward each other -- or of parents towards their children. These are natural rights and obligations. The state recognized them and protected them and enforced them with appropriate laws. Not always adequately, for the law is not a perfect instrument. But what is important is that the state was responding to rights and duties which it recognized but did not invent.
A relationship between persons of the same sex is altogether different. It might be given the name "marriage," but what is signified by the name would not be the same. Gay marriage would be marriage only by equivocation. It is true that the law could confer on homosexual couples certain rights and privileges that have traditionally been conferred on marriage. It might even decree that such relationships shall be called marriage. But the law cannot cause them to actually be marriages. Gay marriage would be a legal fiction.
What is the point of calling a homosexual relationship a marriage and endowing it with a public status like that of marriage? What public interest does it serve? The fact that the relationship involves sex is irrelevant, since homosexual sexual activity is essentially sterile. Should we subsidize the homosexual relationship because it involves love? This would be true for any deep personal friendship.
It might be objected that heterosexual activity is not always procreative either; some heterosexual couples do not wish to procreate and others cannot. But this is an idle objection. The law can only go so far. The heterosexual relationship can be ordered to procreation, though this result may not always occur, and this is the grounds for the public recognition of marriage. To go further and attempt to ascertain the capabilities and motivation of individual couples would be impractical and an intolerable invasion of privacy.
But the homosexual relationship can never be procreative, and so here a clear line can be drawn.
The paradoxical result of all this is that while there is no discrimination in refusing to recognize the homosexual relationship as marriage -- since it is essentially different from the heterosexual relationship -- there would be discrimination in granting the privileges of marriage to homosexual couples while denying them to other personal friendships.
Imagine two dear friends of the same sex, or a brother and sister who live together. Although their relationships would not involve sex, they might find it advantageous to enjoy the legal and economic privileges of marriage. Why would their claim for these benefits be any less reasonable than the claims of homosexual couples?
So if we wish to subsidize homosexual friendships, we must, to avoid discrimination, subsidize all loving personal friendships. If that is absurd, so is gay marriage.
Richard Berquist is professor emeritus of philosophy, University of St. Thomas.