Marriage - What Are we Actually Arguing About?

This June, the United States Supreme Court decided that a wedding between two people of the same gender can be a legal basis for marriage. Dr Tomer Persico joins us in a guest post, discussing why this topic is so sensitive and the pros and cons, explaining the different fundamental attitudes which are at the heart of this discussion.

Dr. Tomer Persico23.07.15

Supporters of same sex marriages won a decisive victory in a referendum in Ireland last Friday:  62% in favor, 38% against, in a country where over 80% of the population identifies as Catholics. This is nothing but further evidence of the quickest and largest cultural and ethical revolution the Western World has ever experienced. Ireland is joining 19 independent countries and another 36 US states that have already approved the rights of homosexuals to marry. It looks like there is no way to stop this fundamental change in the way the West perceives marriage.


And yes, it should be clear that this is exactly what is happening: The West is changing, or is recognizing the changes that already exist in the institution of marriage. From another perspective, we can say that the West is updating the discussion of rights such that the right to marriage is also open to someone interested in marrying someone of his/her own gender. It is with regard to this issue that the US Supreme Court gave its ruling. In January, they announced that they are willing to provide judgment on several petitions they received regarding certain US States prohibiting single sex marriages.


The judges passed judgment on two questions. 1) Does the Constitution require each state to allow homosexuals to marry.  2) Do states have the right to prohibit these unions in their own state - but are they obligated to recognize same sex weddings that took place in another State.


The first question the judges tackled is significant because it seeks to determine the ethical basis of the issue and to determine if same sex marriages are a right of every citizen, a right that a State does not have the ability to deny. Many proponents of single sex marriages compare between marriage with someone of your gender to interracial marriage, which was illegal in many US states in the past and since 1967 it isn't only legal, but prohibiting interracial marriage is considered to be undermining basic rights of the individual and against the law.

Marriage - What Are we Actually Arguing About?Photo from Wikipedia:

Personally, I support same sex marriage. But I don't think that gay marriage is comparable to interracial marriage. In my opinion, it is a different type of disagreement, and I will try and explain it here. To do that, I would like to answer the basic question - what actually are we arguing about regarding same sex marriage?


What Are We Actually Arguing About?

One can oppose single sex marriage for many reasons: religious reasons, concern over the welfare of society, because one is simply a conservative and of course, because of homophobia. And a person can support single sex marriages for an equal variety of reasons: because he/she doesn't care, because progress is a value to him/her, because adopting the concept that each person has the right to marry who he or she wants as a basic right seems right, or because one is a libertarian who sees the whole intervention of the state in the lives of the individual as obscene – or just because one supports the gay community. I won't go into each of the possible combinations of these varying positions, but I will instead address why I think it's a central question in most of the discussions on the topic and that despite that its being a central question, for some reason it is not formulated clearly.  In order to do this, I will take the help of an article that was published some years ago, Harvard Journal of Law and Public Policy and was also expanded into a book under the title -what is marriage.


And that is indeed the question: what is marriage? The authors begin by presenting two different perceptions of the institution of marriage.


The first viewpoint is the Traditional Point of View on marriage. This point of view states that marriage is the union of a man and a woman who enter into a permanent, exclusive mutual commitment which is consummated in a natural, inherent way by bringing children into the world together. The couple actualizes the union between them through "couple actions", actions that include the active part of the process of procreation. In this way, they are unified as one unit which has the ability to procreate. The marriage is valuable in and of itself, but the essential intention of the marriage is procreation and raising children. This view of marriage also includes norms of monogamy and loyalty, which are connected to protecting and developing the children. This explains why marriage is important for general society and why the state has an interest to certify and oversee marriage.


Then there is also another perspective on marriage: the idea of marriage according to the New Perspective. According to this point of view, marriage is a union between two individuals who commit to love and care for one another in a romantic way and to share the burden and the good things of a partnered life. In essence, marriage, according to this view, is a union of consciousnesses and hearts amplified by any type of sexual intimacy the couple chooses.


The State has an interest to certify and oversee marriages because the state is interested in romantic and stable relationships and with the concrete needs of the couple and their children.


The institution of marriage went through many incarnations in human history. Yet what we call today, the "traditional viewpoint", monogamous, heterosexual marriage, which is based on the desire of the couple to create children, was only born during the Roman Empire and in some way,  in the writings of our early religious leaders. This point of view was transmitted to Christianity and to the Western World. The couple enter this framework within the confines of the criteria of their religion, station, race and nation. Their subjective feelings for one for another has no real weight in the creation of the couple.  


It is not difficult to find testimony to the fact that having children (as working hands but mostly as inheritors) was the basis for traditional marriage such that according to halacha (Jewish law) a husband is permitted to divorce his wife if she did not bear him a child after 10 years. Or according to laws in the Roman Empire, married couples with children were recompensed, and received higher recompense for three children or more. Marriage was designed around the couple as a procreation and child rearing unit. In effect, these authors suggest that if heterosexual intercourse was not required in order to bring children into the world ( if, for example, human beings would multiply through mitosis as cells do, or through fertilization, there would be no institution of marriage at all.


The New Perspective sees the creation of a couple as a way to certify, foster and preserve romantic feelings, as it is necessary that individuals in couples love each other. Without love for one another the marriage is considered valueless. According to this view of marriage, members of a couple choose each other based on their feelings and sexual attraction to each other and sometimes, even, based only on their intuition that "this is it".


This type of marriage is not based on the a desire or need to have children (even if having children is often considered part of this type of marriage) and no weight is given to criteria of religion, status, race or nationality in connection with the continuation of a certain group. Because these marriages are based on a connection of feeling, when the feeling falls apart, usually the marriage falls apart as well, whether the couple has children or not. It also stands to reason that breaks from monogamy will be forgiven - and sometimes even encouraged; if feelings are what creates a couple, it also could be the basis of swerving from it.


So Who Is On Each Side of the Argument?

I hope the picture is becoming clearer. The people who believe in the New Perspective of Marriage don't understand why someone else cares if two people from the same sex get married to each other. They love each other! Why should their love be considered any less than the love between two people of opposite genders. Such a person would similarly not understand how permitting homosexual marriages could threaten the institution of marriage. They believe the opposite is the case: because now more people are giving weight to the model of relationships based on love.


But for those who believe in the traditional point of view, same-sex marriage is not about widening the institution of marriage - but about changing it from the very base. The romantic relationship is no longer based on the desire to have children and to raise the next generation, but has morphed into something that is disconnected from the desire or need to bring children into the world - and instead is based on feelings. Instead of starting a family unit, we are creating a box of resonating feelings and instead of the basic heterosexual contrast, there is now openness to coupling that does not create a unit of procreation.


So this is not an argument between homophobes and people who are friendly to the gay community (although there may well be many homophobes among them) rather it is an argument between people who believe in very different models of marriage. Therefore, this discussion bears no relation to forbidding marriage between races. Prohibiting interracial marriage precluded individuals born into different groups to enter the traditional classification of marriage with each  other, partially on a racist basis and racist values. The fact that there is no option in the State of Israel for interreligious marriage harms the ability of couples to enter the traditional status of marriage, on the basis of separating between religions. This is because of either racist or cultural values. This prohibition is based on the desire to separate between different populations, as opposed to the prohibition of single sex marriages, which expresses an opposition to changing the institution of marriage from the traditional viewpoint to the new perspective. With interracial marriage, the prohibition was based on the desire to maintain a certain cultural institution


And What is Marriage?

A number of parliament members supported a new law to enable a Covenant of Living as a Couple. This would provide same sex couples with equal rights to those of heterosexual couples but their unions would not be called marriages. This law highlights the above difference. The cultural institution is saved, while individuals would receive rights. This is a considerable move forward and a legitimate viewpoint in my opinion - and indeed, is the view of the current Pope. If we accept the points above, we can argue that there is no real requirement to give same sex couples equal rights, because a country has the privilege to decide to which types of relationships, as opposed to population groups, it will provide advantages.

Thus, a country decides whether to provide tax benefits to a couple consisting of an older mother and a daughter who is caring for her. The connection between them is of course deep and involves feeling and mutual commitment. Don't they deserve the rights of a married couple? Maybe yes and maybe no, but this is the decision of the political infrastructure. For example, the State gives benefits to a couple consisting of a mom and her baby. We call this type of couple "single mothers" and the State chooses to consider their needs.


This proves that if same sex marriage is not considered marriage but under a Covenant of Living as a Couple, the State can consider the needs of two men who love each other. But the State can also choose not to consider their needs. However, if homosexual unions are considered marriage, the State must give this couple all the rights that they deserve as a married couple. Therefore the law proposed to create the Covenant of Living as a Couple, which includes equal rights for homosexual couples, is advanced, considering. Of course, accepting same sex relationships as marriage will be an acknowledgement that marriage as based on the New Perspective, which will be an even greater change. The US Supreme Court decision will rule on this exact question: is the union of two homosexual individuals a marriage, in which case, the State does not have the right to forbid the registry of the marriage and must afford them all the rights of a married couple.


Is marriage a universal human right? In December of 1948, the UN General Assembly added the Right to Marry as a right in the Universal Declaration of Human Rights, which was ratified in the General Assembly. This document, which has since been used as a universal model of ideal human rights, states in paragraph 16 that "men and women from the age of maturity, without restriction of race, nationality or religion, have the right to marry and to create a family. I believe the inability to perform interreligious weddings in Israel contradicts this right.


No attention is paid to the identity of the couples - hetero or gay - although it is hard to imagine that the people writing this had in their minds same sex marriages. A sub paragraph in the same section states that the intention of the paragraph is the protection of the family as the basic unit of society. This seems to strengthen the traditional viewpoint of marriage, which proclaims that unions are created for the purpose of having children. Of course, it is possible to change the definition of family and many today believe that single sex couples with children are a family in every respect.


In her book about the creation of the Universal Bill of Rights, Mary Ann Glendon reveals that this subparagraph raised a great deal of differences of opinion. At first, the American Delegation didn't understand the need for it. the Saudi Delegation and delegations from other Muslim countries saw the focus on the equal rights between each member of the couple (see the declaration) as stealthily sneaking in Western values. In the end, the paragraph was ratified as stated, and in 1967, was amplified by the US Supreme Court in the decision of Loving V. Virginia, when they ruled that it was illegal to prohibit interracial marriages. They upheld that the freedom to marry is recognized as one of the most significant personal rights in the pursuit of happiness of free people.


If we agree with the Supreme Court that marriage is an essential element in the pursuit of happiness, we are on the way to seeing marriage as a basic right, regardless of whether the couple in question is heterosexual or homosexual.


Why I Am in Favor of Permitting Same Sex Marriages

While accepting same sex unions as marriage requires changing the very model of marriage to the New Perspective, these changes have already happened, without any connection to the gay community. For the last hundred years, and certainly by the middle of the twentieth century, heterosexual couples in the West get together based on a mutuality of feeling. We already don't marry based on criteria such as position or religion. Of course, these factors may influence our decisions, but they don't determine a marriage. We are shocked by the idea that parents would marry us off based on their economic or sectorial interests. The fact that we base marriage on feeling explains the dramatic rise in divorce rates. What is important is how we feel, not the ability to have and raise kids.


The traditional position of marriage is already de facto rejected by most of the West, which explains the quick change of public opinion regarding same sex marriage. As soon as the homophobia of the general public died down (after several societal processes and after some years of struggle of course) people for whom marriage is based on the New Perspective naturally couldn't see a reason to forbid a gay person to marry. We can assume that this is what happened in Ireland. It is therefore no longer true that enabling same sex marriage will cause a revolution regarding what marriage is about. It would be unfair to allow only heterosexuals to enjoy/suffer the New Perspective of marriage, while banning the gay community from participating in it. This is my first reason for allowing same sex marriages.


In a wider view, the change in the essence of the institution of marriage mirrors many other changes in society, such as developing fields in psychology, or the rise in the new spiritualism. It similarly mirrors the development in the conversation of human rights. These changes stem from the fact that authority, meaning and identity in Western society has shifted from being determined from the outside, to an internal determination. Where religious and societal institutions once held sway on these issues, now we look to our own souls for the answer. We identify ourselves and find meaning in our lives more and more based on what is happening within us and less and less based on our position in the social system, or in our membership in an ethnicity, religion or in our social standing. The mere fact that sexual orientation is a central part of a person's identity today shows how much our inner life is what defines us.


As we recognize the importance of our inner world  and realize that our identity comes from within us, we become more considerate of other people regarding this. The right to freedom of religion and conscience is based on the understanding that belief and conscience are central parts of an individual's identity - and that we must enable each individual to express these aspects of him/herself with the greatest of freedom. In the same light, we must allow an individual whose identity is homosexual to express that identity with the greatest of freedom. The second  reason I am in favor of same sex marriage is because the field of sexual orientation is related to religion, conscience, expression, areas we consider worthy of special protection. Homosexuals deserve the ability to be married because this is a deep expression of their identity. And therefore, in the end, this is a basic right.


And finally, as a religious man, for me marriage is a sanctification of the couple in front of Gd. My third reason for accepting same sex marriage is that I want religious people who happen to be gay to have the ability to sanctify themselves in this way. While one may claim that this sanctification doesn't need to be connected to the way one is registered in the Ministry of Interior. Anyone has the right to perform any religious ceremony that strikes their fancy. However, it can also be argued that the official recognition of the State has meaning and is also important to different religions. This is exactly the contention of people who oppose same sex marriages by the State - and this is why they oppose it.


At the end of the day, in order to determine for ourselves how we feel about the question of same sex marriage, we must answer two basic questions: First of all, we must ask ourselves what do we believe  marriage to be? Why do we get married? What forms the relationship between two married people? And secondly, we must ask ourselves do we believe marriage is deeply connected to our identity as a human being and has great significance in our lives? If we think that marriage is first and foremost a communion of hearts, an emotional covenant of love and/or we think that marriage is connected deeply to our identity and to our meaning in life, then it would stand to reason that we must support gay marriage.

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