Social justice and the abandonment of marriage

The argument in favor of redefining marriage to include any and all sexual unions essentially comes down to one claim: "Fairness and social justice demand it."

The claim is made in various ways, from the sympathetic ("because we weren't married I did not inherit my partner's estate") to the shrill ("without marriage I am deprived of dignity, humanity, personhood and the whole range of human experience"). The persuasiveness of the claims are debatable (Why didn't the partner make out a will? How can any interpersonal relationship that is defined by excluding half of humankind ever encompass the "whole range of human experience"?).

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But, however sympathetic or persuasive, the "fairness" and "social justice" claim simply does not justify abandoning the long-standing norms that define marriage.

Don't get me wrong. I do not oppose social justice and fairness for homosexuals. I believe that society must recognize and respect the legitimate expectations of those involved in homosexual relationships. Recognizing and respecting those legitimate expectations will require careful and thoughtful social debate. At the very minimum, it will demand action that does not make social injustice worse.

Recognition of same-sex marriage, however, would exacerbate – not alleviate – social injustice.

"Fairness" and "social justice" can be provided in any number of ways. States might establish a new legal status, perhaps called "reciprocal beneficiaries." States could then determine what social benefits (from tax benefits to health care to whatever) they will confer on those relationships. This inquiry, however, must be based on a consideration of (1) fairness and (2) social utility. Benefits, like tax breaks and other subsidies, are conferred because society receives something in return.

In determining what social relationships should receive special treatment we should not as current activists (and even the courts) suggest focus on the presence (or absence) of sexual behavior. Society, as the Supreme Court instructed us this past summer in Lawrence v. Texas, has no business drawing distinctions between the value of various kinds of adult consensual sexual relationships. It is simply unfair, unjust and unwise to start handing out benefits to sexual partners simply because they are having sexual intercourse of one kind or another. If we hand out tax breaks for homosexual intercourse today, what types of copulation will be entitled to public subsidy tomorrow?

Furthermore, many more relationships than those within the much-celebrated gay-lesbian-transgendered relationships deserve social protection. What about the vast numbers of loving, interconnected, committed, emotionally and economically dependent relationships that are not sexually defined? These claimants are completely "left out" of marriage – however far we stretch the term. But, if the "benefits" or "status" of marriage are so important, why should these relationships be ignored?

What about a grandmother living with grandchildren who have been abandoned to her? What about a brother and sister who have lived together throughout life? What about roommates who are socially and economically dependent but not sexual partners? The list goes on and on and dwarfs the numbers of the gay-lesbian-transgendered community. These social relationships deserve justice too.

How will giving any benefits to gay-lesbian-transgendered people reduce the supposed irrationality or discriminatory nature of present law? All so-called "gay marriage" will do is pick out one group of people and say "you get special treatment, too" while leaving many more people and many deserving relationships (like the grandmothers-grandchildren, economically dependent roommates, longtime friends, etc.) without social justice.

In short, if the issue is social justice, social justice is not furthered by simply picking GLBT folk out, giving them tax breaks and ignoring all the rest.

Therefore, before additional special benefits are granted to any particular group of relationships beyond marriage, society must carefully determine which circumstances warrant social protection. And, we must be sure that all relationships that deserve social justice get it. Sex, furthermore, has nothing to do with this inquiry. No one has ever received a tax break simply because they are fond of each other and having sex even if they are fond of each other, having sex and also having children.

In the meantime, none of the above warrants discarding the longstanding relationship of marriage. All relationships are not equal and they never have been. Marriage has unique value, whether viewed from a biological or historical or any other viewpoint. Just review the work and conclusions of such eminent social historians as Giambattista Vico and J.D. Unwin. Marriage, from the dawn of time, has been the preferred environment for child bearing and rearing and refusal to acknowledge this reality demonstrates not only our current unwillingness to learn from the lessons of history but also our shocking disregard for our children.

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Richard G. Wilkins is the former assistant solicitor general for the United States under the Reagan administration, the founder and managing director of "Defend Marriage" (a project of United Families International) and the World Family Policy Center, and a professor of law at J. Rueben Clark Law School at Brigham Young University.