Why We Are Here

I’ve already written extensively at this blog on the legal issues pertaining to same-sex marriage, and won’t repeat myself here. Instead, I want to talk about marriage itself.

What marriage means to people depends to some extent on the era, and on the stage of life in which one finds oneself. In the 1950s, for many in their twenties, to become married was a rite of passage that signified achieved adulthood and independence, a change in one’s relationship with one’s own parents. In the 1970s, for many in their forties, to remain married seemed to remain shackled to an institution which repressed sexuality and oppressed women. And marriage has always signified to some extent the commitment to share in the long-term burdens of childrearing.

If a marriage survives past the phase in which for many the focus is on childrearing, a new aspect comes into view. When we are children and we become ill, our parents are the ones we turn to to care for us. As adults, if we are ill, we must care for ourselves, and if we cannot, our spouse plays that role. The older you get, the more salient illness becomes, and looming ever larger in the background, death. Interestingly, people, even very young people, often describe their interest in marriage half-seriously in terms of not wanting to die alone. If all goes well, we face gradual decline and inevitable death, but if we are happily married, we don’t have to face them alone.

My father is at the last stages of his life, but many years ago, his younger wife was diagnosed with a rapidly developing form of dementia. Although he has always been a generous man, I would not describe him as someone overly moved by compassion and empathy. Nonetheless, he dutifully cared for her, in a role that began more like that of a friend and ended more like that of a hospital worker, throughout much of his late 70s, perhaps almost killing himself in the process. Eventually his own health made it impossible for him to discharge that duty, but he always expressed the intention of striving to do so until he died. There was utterly no possibility of reciprocity at that point; it was just what one does. They were married.

I grew up in a very different world than the one I face today, a world in which homosexuality was perceived as a dangerous weakness and a repulsive vice even by those who did not regard it as a sin. Accordingly, most who found that this was the only way to experience sex as others do did so secretively, in dread of discovery, the consequences of which would be ostracism and contempt. And as people tend to do, some people formed emotional attachments to the people they had sex with.

During the 1970s, our society flirted with a more broadminded attitude towards all this, as a part of a larger transformation in how people regarded gender roles, and the word “androgyny” became a kind of buzzword of emancipation and transgression. But one does not build a society on transgression.

I remember quite vividly when the world began to change. I was in college in the early 1980s, and there were rumors of some sort of mysterious “gay cancer.” By the time that I graduated and moved back to my hometown of San Francisco, the AIDS epidemic was in full swing. I have no doubt that the political activism galvanized by AIDS led directly to the marriage equality movement, but not merely because activism had become a matter of life and death, and that once awakened, it was bound to turn its attention to other issues of interest to the gay community. The connection is deeper than that.

During the first job I worked in San Francisco, one of my co-workers quit at one point, and I later learned he did so because he needed to devote all his attention to caring for his lover, who was dying of AIDS. This was the first time that AIDS became something concrete to me. Later, when I was taking night classes at San Francisco State, I shared a ride with some friends, one of whom began talking in a casual way about his waxing and waning opportunistic infections; I learned later that he went home to his parents to die–no one else was there to care for him.

Our sense of obligation and empathy towards the people we share our lives with, to the point of wanting to ease their suffering and make sure that they do not die alone, is something deeply rooted in human nature. It is not just an artifact of the law. By now, my point should be clear. San Francisco in the 1970s may have been full of people who moved there in a spirit of defiance of convention and sexual self-emancipation, but by the 1980s, it had become ground zero of a truly horrible way to die, and many of those same people were discovering, to use a tepid phrase for a profound thing, the “meaning of commitment.”

Same sex marriage was born in that matrix. For imagine, if you will, that by force of circumstances you find yourself discharging the most important and painful obligations that marriage ever involves, and then realize that this institution, which you may have been defiant of before, is closed to you anyway. You will see to it that the person you share your life with does not have to die alone, but let us not dignify that with the word and privileges available to people whose sex lives are not characterized by a repulsive vice best kept secret.

This is the moral argument, ultimately, for why same-sex marriage was ever an “equal protection” issue in constitutional law. I have been critical of that argument in the past; my purpose today is not to defend it, but to render it comprehensible to those baffled by it. If you do the same things, you want to be treated the same way. The more important the things themselves are, the more urgent that desire becomes. Call it “a sense of fairness.”

I say all this because for those most deeply opposed to same sex marriage, the roots of this are, I suspect, not just a difference of religious opinion. They are not even a concern with maintaining a certain conception of gender roles for the sexes. I think that  the concern is ultimately rooted in a perception that sex is self-indulgent, that marriage is sacrifice, and that the gay community wants to scramble the cultural code so that we honor self-indulgence instead of self-sacrifice. These concepts are already problematic and much could be said about them, but my main point is: no. If gay relationships hadn’t already become self-aware under the shadow of suffering and death, if they hadn’t achieved “seriousness,” none of what followed would have ever occurred. In as concise a form as I can put it “I too shelter a mortal; why am I too not honored? How is that just?”

That was the question the gay community has posed to America for the past several decades, and today, the highest institution in the land concerned with justice answered: it isn’t.


3 comments on “Why We Are Here

  1. Jacob Hunt says:

    Great reflection prof. Gonna have to share it on Facebook.

  2. Scalia seems to think that this is a case of the Supreme Court making law (rather than upholding or clarifying it), and that he primarily objects on those grounds. I wonder if you might have a few words to say about whether or not that view would be reasonable from a certain legal perspective, or if he’s making arbitrary distinctions between groups who have constitutional rights.

    • poseidonian says:

      The dissenters’ concerns with democratic process and judicial activism are legitimate, which doesn’t mean their conclusions are necessarily right. Before I write something long again on the legal issues (I’ve revised my views somewhat) be aware that there are several long, detailed posts on the blog already which might answer some of your questions. I’ve also got some new thoughts, both about this opinion and about why conservatives are attracted to the views they hold, topics aside, which I’ve just blogged about.

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