Recently, the states of Connecticut, Iowa, Vermont, and Maine granted marriage rights to same-sex couples. In addition to this, seven countries around the world (Belgium, Canada, Netherlands, Norway, South Africa, Spain and Sweden) allow LGBT people to get married and benefit from the full rights that marriage grants. Seen as challenges to the contemporary marriage, these actions of legalizing same-sex marriage quickened a series of discussions about the institution of marriage and how it should be actualized.  The debates around this subject are provocative and the result is a clash between the two sides involving both passion and, in many cases, hate. Trying to solve this problem has been proven nearly impossible, but the purpose of this paper is to attack some of the main arguments against gay marriage, as much as bringing arguments for the changes necessary to the institution of marriage.

 

The philosophical point of view – a short review of Hegel’s right theory   

 

We will now analyze the Hegel’s theory of right in general and, in particular, the idea of marriage.

The word right has two meanings. On one hand it means an abstract idea or ideal about how a society should function, about what good means, and about what is fair in general. This idea is of course immuable, constant, and eternal. On the other hand, the same term defines the practical application of right to our society, to the norms and values that we share, that we cherish and that we live according to. As Plato put it in his “Republic”, the practical representation of the perfect idea (the immuable, eternal right, in our case) is imperfect, is just a pale copy of what a term really means, what right is in itself, in its essence. Therefore, for Hegel, the practical right, as an extension to the idea of freedom, is perfectible, is changeable, is a volatile form that is redefined daily, in an attempt to reach the perfection of the abstract idea of right. As professor Jim Vernon (2009) put it: “Hegel’s account of the Idea of freedom articulates both the necessity of popular shifts in the determinations of the institutions of right as well as the duty to struggle to increasingly actualize freedom through them.”  (p. 70)

So, trying to actualize freedom seems to be the main concern in Hegel’s right, in order to achieve universal freedom and actualize the institution of civil society, defining the subjects as individuals; because “the universal freedom of the will is only demonstrable in abstraction from all content, but its free willing power is only actualized through some objective determination (an action, an institution, etc.)” (Vernon, 2009, p. 72) But in an analysis about freedom, we must pay attention to the fact that freedom in itself its only an abstract concept, and freewill is a representation of freedom (as an abstract concept) in individuals. Thus, freedom can be actualized only through practical institutions that exist and that can be changed through social interaction or through changes in the freewill of individuals. Likewise, Vernon (p. 74) argues that “ if the will is to actualize itself as free, it must do so through an institution of right whose existent determinations are altered by the free actualization of wills through it.”

Because actualizing freedom (or change) is a process initiated by individuals, through institutions, and because this change come after an individual made, as Lambert said, a “partial and relative judgment” (as cited in Vernon, 2009, p. 74), Hegel does not argue from a conservative or radical position, but rather takes an activist position, “for it both affirms our inalienable right and calls us to our duty, to side with the emancipatory social movements that seek to enhance and expand the actualization of freedom afforded by contemporary institutions against the existent forces that would either hinder such expansion or eliminate the institutions that actualize it. In short, it takes side with freedom” (Vernon, 2009, p. 76)

Moving in to the case of marriage, seen as a representation of freedom in particular, Vernon (2009) argues that “marriage is the immediate concept of the family, which is the immediate spirit of ethical life.” (p. 77) Because it’s more ethical than social (as Hegel proves), marriage is a manifestation of the free will of two individuals, it consists of mutual love and trust, it’s a freely taken spiritual contract between two participants that have to define themselves inside the boundaries of the institution of marriage. Why do individuals place themselves inside these boundaries? Because it “is a duty for all free beings because it actualizes our essence.” (Vernon, 2009, p. 79)

Even though one may say that marriage is, for Hegel, a sum of elements, like marriage ceremony, heterosexual union and fixed, defined roles inside the union, the nature of the marriage (ethical) requires only the ceremony and the loving relationship. “More importantly, successful procreation, sexual activity and even the presence of sex drive at all, as Hegel implies, essentially contingent and, thus, can play no role in determining the ethicality of marriage. What ultimately matters, for the Hegelian, is the actualization of the freedom of individuals once existent, not the contingency of their coming into existence.” (Vernon, 2009, p. 83) Furthermore, we cannot affirm that marriage should be divided into rigid sex roles, because it would mean that the vows (so important in the ceremony of marriage) were not taken as a result of free will, thus the marriage is not ethical, given the fact that the essence of marriage is the bond itself.

Taken all the elements analyzed above, we can define marriage simply as a monogamy (Die Ehe ist wesentlich Monogamie), more like an ethical monogamy. “By defining marriage as freely willed monogamy tied to no external social or natural determinations, Hegel clearly demonstrates the ethical possibility of same-sex marriage.” (Vernon, 2009, p. 85) Moreover, what actually matters in actualizing the marriage are the consequences of marriage being seen as primary ethical and as an actualization of freedom and the actual changes that legalizing same-sex unions will bring.          

 

Understanding equality

 

Equality is a liberty guaranteed by the US Constitution. Each individual has the right to pursue happiness, a sentence that includes in itself, besides the economical, capitalist meaning, also the ideas of freedom and liberty. Each American citizen should be free to look and find its own happiness, independently of the fact that he or she is a minority. Professor William N. Eskridge Jr. (2004) remarks that “clause in the US Constitution provides that a state cannot ‘deny to any person within its jurisdiction the equal protection of the laws,’ albeit without specifying particularly invidious forms of discrimination.” (p. 168) Even though the placement of homosexuals under the equal protection clause is debated, the fact that this minority has been discriminated across history is, once again, a proof that the political decision of granting same-sex couples same rights as to the majority must be compensated by the judicial decision, in the US Supreme Court. The decision of California’s Supreme Court “In re Marriage Cases” (2008) is eloquent: “under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.” (p. 6)

The same professor Eskridge argues that equality, seen from the gay point of view, should be divided into three big classes that can define more widely what the gay civil rights movement is about. He argues that formal equality should be separated from reparative equality and transformative equality. The first type is simple defined: “like things and people will be treated alike” (2004, p. 173) He uses this modern liberal concept to prove that a state should function on individual acts and performances, not on their social statuses; moreover, stereotypes and prejudice should not be considered the base of the US law and they should be considered factors that disturb social cohesion and favor social division. To define his second concept, professor Eskridge says, “For political reasons, gay rights are rarely articulated in terms of reparative equality, but this idea has a role to play in the same-sex marriage debate. By criminalizing their consensual behavior and pathologizing their relationships, the modern state has contributed not only to stereotypes of gay people as promiscuous and incapable of forming marital relationships, but has actually made it harder for gay people to live out the romantic ideals that saturate American culture.” (p. 175) The third type of equality, transformative, should be the main concern of the state. Because pleads that equality (in our case full gay rights) can transform the society as a whole, not only the group that the actions of equalizing were taken. The basic democratic institutions should be transformed by a decision in the case of gays and lesbians, starting a path to evolution.

 

Queering Citizenship?

 

Often times, the American society is defined as being white, Christian, and heterosexual. Those that were not inside these norms were not really considered citizens. They were not representing the standard, and were beyond doubt, a mistake of history or part of a simple game with candidates and voters. Nowadays, in the aftermath of the civil rights movement, discrimination is still an issue in American politics and in everyday life. But the gay situation is the most dramatic one. 30 years after the gay civil rights movement started, gays across US find themselves being singled out, with no protection from the state and without any representation.

Homosexuality is still considered a “practice” not a natural identity, and gay marriage would seem a confirmation of a practice. Because the status of homosexuality has not been defined by American right, the legal steps towards legalizing same-sex marriages are small and hard to make. Even though antidiscrimination laws granted gays and lesbians “special rights”, this category is not yet seen as “suspect class” according to the federal laws. In some of the states, steps have been made. The so-called “civil unions” give certain rights to gay couples, but bottom line, this practice can be considered a reminiscence of the “separate but equal” policies. In 1993, in the Baehr v. Lewin case (Hawaii) “the court claimed that although gays and lesbians were not a suspect class, this was a sex discrimination case. Suspect class is the terminology the court employ to refer to classification – or identity – based claims. A class (or group) is designed “suspect” when it is seen as historically discriminated against. Race is a suspect class, but gender is only “semisuspect.” A generous reading would suggest that the terminology refers to a suspicion that at least some identity-based distinctions arise from prejudice and are instituted to further subordination, although the courts do not appear to have admitted this connection.” (Brandzel, 2005, p. 183)

The biggest fear of the opponents of same-sex marriage is that, once the gay marriages are legal, it would mean the end of gender discrimination. The male and female figure in a marriage would change, and the sexist behaviors would disappear. Brandzel (2005) argues that “if marriage has been a central vehicle by which the state has gendered, racialized, and sexualized its citizenry, then same-sex marriage will certainly disrupt this process.” (p. 188)

But the issue of same sex marriage is problematic inside the gay activism, also. Some claim that by asking for the legalization of gay marriage, the gays’ appeal to the state to recognize them as being a minority, which could solidify in the public opinion the gay identity. Moreover, the rights that gays are asking for are the same rights as heterosexuals, but by trying to do so, they are showing the similarities between homosexuals and heterosexuals, confirming so the idea that heterosexuality is right (in the good sense); thirdly, “by attempting to obtain marriage rights, gays and lesbians help further heteronormativity.” (Brandzel, 2005, p. 190)

One of the most interesting points of view is that by passing legislation like DOMA (Defense of Marriage Act) and the mini-DOMAs (the states amendments to their constitutions claiming that marriage should apply only to opposite-sex couples), the state is actually questioning heterosexuality and the legitimacy of it: “By questioning the presumption of heterosexuality in marriage, same-sex-marriage advocates have exposed the presumption of the naturalness of gender that is inherent in the cultural production of heterosexuality.” (Bradzel, 2005, p. 195)

One of the strongest arguments for gay marriage is confirming that marriage provides a better environment for couples and that same-sex marriage activists fight not for destroying the institution of marriage, but to strengthen it and be a part of it. “The evidence suggests that marriage helps many ordinary people lead better lives. Across a range of social indicators, including wealth, health, violence, longevity, and welfare outcomes for adults and children, alternatives to marriage simply are not as stable, and do not function as well, as marital relationships. The reasons are not surprising. With all its imperfections, marriage still provides a readymade set of expectations, understandings, and aspirations that are widely known. Marriage defines a panoply of duties that family members owe to one another. Marriage has a clear cultural meaning and an accepted normative force. Essential to marriage are a firm, long-term commitment to mutual aid and support, and a pledge of exclusivity. Although these commitments may sometimes fail, more often they do not. Marriage’s long track record as a building block for families and a foundation for beneficial relations between the sexes suggests that ordinary people desperately need the anchor of clear expectations, and that they respond to them.” (Wax, 2009, p. 1012) Moreover, “most proponents of same-sex marriage do not seek to demote marriage from its elevated social and legal position, but rather to reform it selectively. Apart from seeking admission for same-sex couples, proponents advocate no fundamental change in marriage’s meaning or hallowed social role. Rather, they seek to signal their reverence and their willingness to subject themselves to marriage’s strictures and responsibilities. Thus, the same-sex marriage movement is essentially conservative: it does not challenge the marital status quo, save for finding a place for gay couples within it.” (Wax, 2009, p. 1001)

 

Conclusion

 

Same-sex marriage represents one of the lasts civil rights fights. Because “the right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people.” (In re Marriage Cases, 2008, p. 63) Marriage is an important, civil act of commitment and promise- one that moulds the foundation of our societies and one that should be shared by all committed couples.

References

1. Barkacs, Linda L. (2008). SAME SEX MARRIAGE, CIVIL UNIONS, AND EMPLOYEE BENEFITS: UNEQUAL PROTECTION UNDER THE LAW – WHEN WILL SOCIETY CATCH UP WITH THE BUSINESS COMMUNITY? Journal of Legal, Ethical and Regulatory Issues, 11(2), 33-44.  Retrieved May 19, 2009, from ABI/INFORM Global database. (Document ID: 1615427131).
2. Brandzel, Amy L. (2005). Queering citizenship? Same-sex marriage and the state. GLQ, 11(2), 171-204.  Retrieved May 19, 2009, from Multicultural Module database. (Document ID: 813420131).
3. California Supreme Court (2008). In re Marriage Cases. Retrieved May, 19, 2009, from http://www.courtinfo.ca.gov
4. Esridge, William N. (2003). The Same-Sex-Marriage Debate and Three Conceptions of Equality. In Lynn D. Wardle, Marriage and same-sex unions: a debate (pp. 167–183). Westport: Praeger.
5. Steinfels, Margaret O’Brien. (2009). Sex, Religion & Prop 8. Commonweal, 136(4), 10-11.  Retrieved May 19, 2009, from Humanities Module database. (Document ID: 1655708941).
6. Vernon, Jim. (2009). Free Love: A Hegelian Defense of Same-Sex Marriage Rights. The Southern Journal of Philosophy, 47(1), 69-89.  Retrieved May 19, 2009, from ProQuest Religion database. (Document ID: 1672007041).
7. Wax, Amy L. (2009). THE FAMILY LAW DOCTRINE OF EQUIVALENCE. Michigan Law Review, 107(6), 999-1017.  Retrieved May 19, 2009, from ABI/INFORM Global database. (Document ID: 1682916191).