Last week, I laid out some of my ideas about what is and is not radical about same-sex marriage, boiling down a few of the chief concepts I've argued in public over the past 15 or so years. Maggie Gallagher, chief nemesis of the marriage-equality movement, referred to one of those three posts at The Corner, National Review's group blog. In response, I noted that we agree, in small part, that allowing same-sex pairs to marry continues to nudge the meaning of the institution in the direction of separating sex and diapers. Maggie responded, paraphrasing me incorrectly (which, all right, isn't misquoting exactly, but which still puts words in my mouth that I would never say, imply, or think) this way:
E. J. says we agree that gay marriage in some nontrivial way disconnects marriage, sex, and diapers. It reduces the connection between marriage and its erstwhile chief public purpose: regulating responsible procreation.
No, Maggie, that's not what I said. I said that same-sex couples are following, not leading, the variety of changes in marriage's public meaning that were made by capitalism between 1850 and 1970—the time span between Anthony Comstock's anti-obscenity crusade and the paired Supreme Court decisions of Griswold and Eisenstadt. In addition, I would not agree that the most important of these changes in marriage law and public philosophy is snipping the link between sex and babies; that's just one of them. Some of the other changes include formal gender equality, which was won by the mid-1970s; and divorce with remarriage, which implies that marriage is for love rather than being a lifetime sex-and-labor contract, and therefore unbreakable. You believe that adding same-sex couples to marriage is what really snips the link between sex and babies. I don't.
A look at the history of anti-sodomy crusades—first religious, then legal—shows that the Catholic Church considered any sex that had no hope of leading to reproduction as a horrible "crime against nature." Whether that was drinking pennyroyal tea to prevent conception or induce miscarriage; sex con bouche or con mano; sheepskin barriers; coitus interruptus; or using the back door, all were banned for the same reason: Because only sex that led to babies was legitimate. Even intercourse outside marriage wasn't as bad as marital intercourse with barriers, especially if a pregnant couple later married. As late as the early 20th century, the Catholic Church was opposed even to the rhythm method, which had been promoted by one of its priests, as a horrible crime against nature. (My source is John T. Noonan, Jr.'s exhaustive history, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists.)
Much of that distaste was imported into Protestant theology, and, later, Western law—and defeated during the first half of the 20th century by Margaret Sanger and her Planned Parenthood movement, which worked to save women's lives by allowing them to prevent pregnancy. As you know, in Griswold v. Connecticut, the Supreme Court struck down the country's last remaining Comstock law banning the use or sale of contraceptives. That decision codified in American law the separation within marriage of sex and babies. Soon after, the Supreme Court endorsed the then-prevailing view that sex outside marriage was none of the government's business, either, in Eisenstadt v. Baird: It declared that states could not intrude into unmarried people's intimate lives by banning distribution of contraception except to those with wedding rings. That's why, when you and others argue that same-sex couples don't belong in marriage because the institution is for procreation, everyone rolls their eyes and asks whether couples who don't have kids will be kicked out: Because our shared social agreement on marriage's public purposes has already changed. Society no longer enforces the view that sex should lead to babies, and that babies belong only within marriage. Because that shift already happened, same-sex couples now belong—and will, indeed, nudge that symbolism just a little bit further.
But Maggie, I would never, ever suggest that marriage's "chief public purpose" had ever been "regulating responsible procreation." That's your preoccupation, and we disagree profoundly about its centrality. I know you've read my book, What Is Marriage For?; you've referred to it in our exchanges in the past. When I researched marriage's history, I came up with six different axes along which marriage rules and regulations had been laid down: Money (always first!), sex, babies, kin, order, and heart. There have always been rules and regulations about these purposes, but they've shifted dramatically over the millennia, always after hard-fought battles. To oversimplify, the chief purpose of marriage used to be allocating your life's primary work or property partner. Sex, that unruly force, was confined within partly because it usually led to babies, who were best cared for as part of, and would contribute to, that household labor effort. I won't go into all the other items here—I could write a book!—but through the 18th and 20th centuries, some other battles over marriage's chief public purposes included whether teenagers and young adults (under, say, 35) could marry without parental or kin permission; whether married women could control their property or have custody of children, free of male control; and whether spouses could divorce for no better reason than lack of love and marry again despite having a first spouse still living, or whether that was polygamy.
My primary point is that same-sex couples seem to fit marriage today because all the changes that make it seem appropriate were already complete. Once upon a time, you needed kin and spouse and community all on your side if you were to make a living. That changed with Adam Smith's invisible hand. And once you can make your own living, you can also make your own bed. Marriage for love; sex for intimacy and not necessarily for babies; gender equality—all that (and more) adds up to me and my gal.
So yes, same-sex marriage confirms that shift in symbolism, further snipping the link between sex and diapers, among others. But I am married today as the consequence, not the cause, of changes that have already happened. Lesbians and gay men are just not important enough a fraction of the population to embed that shift into American consciousness much more than it already is. Only restricting contraception—as the Republicans have been discussing lately—and restigmatizing bastardy (if you'll pardon my language) would do that. Yes, of course, contraception fails. I know you want to link men to their offspring, even then. But the free and legal availability of contraception is what stands as the central symbol that sex and diapers needn't be linked. That's where most young people first and most powerfully encounter the state's opinion about the proper uses of sexuality—considering the use of condoms, available in every drugstore—not when they see Jenny and Mary down the street get married.
Maggie, I apologize if my offer to let you blog here was insulting. I didn't intend that. Of course you have your own corner. As to your question of whether the possibility of same-sex marriage affects 1.5 percent of the population: No, I don't think that's an overestimate. Even those young lesbians and gay men who will never marry are affected by knowing that they are part of the social contract and would be profoundly respected no matter whom they love. So I should've said 3 percent of the population, since that option also affects everyone who is bisexual.
So here's another offer: Want to join me on Bloggingheads.tv? I'm hosting an episode of Sarah Posner's show for her the week of July 16. Are you free that Monday for an online chat? I e-mailed you this invitation, but I haven't heard back. What say ye? Can we talk this through out loud?