Dwight Duncan is a professor of constitutional law at Southern New
England School of Law in North Dartmouth, Massachusetts. Over the
years, Mr Duncan has participated in litigation as attorney for amici
curiae in opposition to so-called same-sex marriage in Hawaii, Vermont,
Massachusetts and New Jersey. He has written extensively on the topic
and given expert testimony to the Canadian government.
BackgroundFor about the past ten years, there has been an extensive campaign in
Europe, North America and some other countries to grant formal legal
recognition to same-sex unions, relationships between people of the
same sex. Whether this legal recognition takes the form of “marriage”
or a marriage-like status variously called “civil union” or “domestic
partnership,” the intent of this campaign, waged largely in the media
and in courts and legislatures around the world, is to officially
sanction and endorse homosexual relationships and put them on the same
level as the spousal relationship between husband and wife.
In 2001, the Netherlands became the first country in the world to
recognize same-sex “marriage,” and Belgium, Canada and the state of
Massachusetts in the United States have since followed suit. This
social experiment runs counter to the universal consensus of history,
across wide divides of geography, religion and culture, as to the
nature and meaning of marriage. Historically, marriage has always been
understood to be an enduring relationship between a man and a woman and
to have some intrinsic relationship to the possibility of having
children and thus providing them with a both a mother and a father.
Even traditions that have recognized polygamous unions have always
understood them to involve both sexes and not just one.
Why Western culture has privileged marriageIn the Judeo-Christian tradition, of course, marriage has been so
understood from “the beginning,” in the Book of Genesis, where it says
that “male and female He created them.” (Gen 1:27) “Hence a man leaves
his father and mother and clings to his wife, so that they become one
flesh.” (Gen 2:24). In the Gospels Jesus Christ expressly adopts these
passages from Genesis in explaining his teaching against divorce (Matt
19:4-7). The Christian tradition, like all the major world religions,
has always recognized marriage as an enduring relationship between a
man and a woman.
This understanding of marriage makes sense if we consider why it is
that society is vitally interested in the marital relationship: because
it is the best setting for the begetting and raising of children, who
are the future of society. This explains why society and the state
require a marriage license for people to get married, and regulates the
terms and conditions of the dissolution of marriage.
Unique among types
of friendship, marriage implicates the public interest, principally
because the marriage relationship, of its nature, has the potential for
bringing new citizens into the world. After all, one does not generally
need a “friendship license” or need to get the government’s approval to
break up a friendship. But because marriage is the socially approved
setting for sexual intercourse, which is procreative by nature (even if
not actually procreative in a particular instance), the government is
vitally interested in the welfare of the children who may result, and
who are best raised by both their mother and their father.
Why homosexual relationships disadvantage childrenHomosexual relationships, which are between persons of the same-sex,
can never result in children. Any children raised by partners of the
same sex are necessarily the son or daughter of some third-party and
not the offspring of the same-sex union. Furthermore, same-sex
parenting by design deprives children of either a mother or a father.
There is plenty of sociological evidence indicating that children do
best when raised by both a mother and a father. Two mothers or two
fathers are just not the same.
For instance, as I recently noted in an amicus brief filed in
Washington state in the same-sex marriage case, “families with
both a mother and a father achieve the best outcomes in raising
children along virtually all relevant measures when compared with
alternative family forms. Under almost every conceivable
standard—educational achievement, physical and mental health, drug and
alcohol abuse, emotional and behavior problems, teenage pregnancy,
depression, suicide, and criminal activity—children raised in homes
with their biological mother and father who are married do better than
various other family arrangements that lack the presence of either a
mother, a father, or one of the biological parents.”
Is contemporary marriage “shot to hell” anyway?Of course, this attempt to radically reconfigure the definition of
marriage comes against the background of various attacks on marriage as
traditionally understood. The widespread practice of divorce, for
example, has weakened our understanding of marital fidelity, as has the
practice of extramarital sex. Furthermore, the widespread availability
of contraception and abortion have tended to lessen the link between
sex, even within marriage, and procreation. Meanwhile, many people are
having children and raising children as single parents. All of these
developments, most of which have nothing to do with homosexuality, are
undermining our shared rich, deep understanding of marriage as the
permanent union of a man and a woman intrinsically ordered to the
procreation and education of children.
Instead, a stripped-down cultural understanding of marriage as simply a
type of “friendship recognized by the police” has allowed homosexuals
to argue that their relationships too should qualify. No matter how
transient or how disconnected to potential offspring, they argue, their
relationships are “loving,” and deserve society’s good housekeeping
seal of approval. This is what I call the “marriage is shot to
hell anyway” argument, and it is one of the strongest arguments in
favor of recognizing homosexual relationships as some type of
However, the endangered status of marriage in the
industrialized West is an argument for being more careful, not less,
before changing an institution of such central importance which is
vital for the future of society. To recognize same-sex unions as
marriage would definitively sever the link between marriage,
procreation and father-mother parenting.
Thus, the burden of proof in making such a radical change should be on
the advocates of change, not the advocates of tradition. As a practical
matter, for example, no one really knows what the long-term effect of
deliberately raising children without a father or a mother will be,
since this experiment is of very recent vintage.
Who should decide: judges or voters?Furthermore, the strategy in many countries has involved using
open-ended constitutional guarantees of liberty and equality and court
cases to force the recognition of same-sex “marriage” on a reluctant
public. That was certainly the case in Canada and in Massachusetts.
Here the question is who should decide this question of the nature of
marriage in a democratic society: judges who are more or less insulated
from public opinion, or legislators who are democratically elected and
answerable to the people. This past election, in the eleven states in
the United States where this question was on the ballot, the
traditional understanding of marriage prevailed in all eleven by wide
margins. The Massachusetts Supreme Judicial Court, on the other hand,
imposed the recognition of same-sex marriage on the Commonwealth by a
4-3 vote of its judges. No wonder that there is now talk of amending
state and federal constitutions in the United States to prevent the
judicial imposition of same-sex marriage.
Is denying homosexuals the right to marry discriminatory?The claim that same-sex “marriage” is some kind of civil right also
assumes the matter at issue. Many minority groups would dispute the
claim that behavior based on sexual orientation is in any way
comparable to innate characteristics like race or sex. Many
African-Americans, for instance, have been appalled by efforts to make
gay marriage the new civil-rights agenda comparable to racial
There are many reasons why same-sex unions are not properly considered
to be required by either liberty or equality. They are not required by
constitutional liberty because this right has never been recognized at
common law. At common law, one had the freedom to marry if one was of
legal age, one’s intended spouse was of legal age and of the opposite
sex, and there were no impediments like an already-existing marriage or
near-degree of kinship. Furthermore, equality between the sexes
did not require the legal recognition of same-sex unions because the
requirement of male and female affected both sexes equally. Nor was the
refusal to recognize same-sex unions a type of invidious discrimination
on the basis of sexual orientation because the discrimination was in no
way intentional. After all, no one asks what your sexual orientation is
when you seek to obtain a marriage license. It’s just that marriage is
only marriage if it is between the sexes.
An uncertain future for marriageIndeed, constitutional arguments for the creation of a right to
same-sex marriage based on either liberty or equality have this problem
about them. They can in no way be limited to the legal recognition of
same-sex couples. If what makes a marriage is simply “love” pure and
simple, there is no reason why three or more people cannot be married.
And so the door is open to the forced legal recognition of polygamous
relationships. Even bans on the marriage of close relatives would
become constitutionally suspect, if marriage were so understood. Thus
the door would be open—not now, maybe, and not by this set of
plaintiffs, perhaps—but eventually and in principle, to incestuous or
Some people have argued that homosexual couples should be given all the
legal rights and responsibilities of marriage, but under another name,
like “civil union.” That is what the state of Vermont tried to do,
though it could only extend identical rights and responsibilities under
its own state law, and not under federal U.S. law. (This is because the
United States government and 40 or so of the 50 states have passed
Defense of Marriage Acts which specify that marriage is only between a
man and a woman.) What’s wrong with the “marriage-in-all-but-name”
approach to same-sex unions?
The problem with this is quite simply that a same-sex partnership is
not marriage and so should not be treated like marriage: Male-female
couples are different from male-male couples, which are in turn
different from female-female couples. (Perhaps “pairs” would be a
better term than “couples” for same-sex unions, since there is no
sexual difference involved.) And if these are different, since same-sex
pairs do not exhibit the complementarity of the sexes in the
relationship, nor have any ability to procreate, nor provide children
with both a mother and a father, then the law should be able to treat
Indeed, to treat these relationships as “marriage,”
or as somehow legally equivalent to marriage, is to commit an injustice
against those who are married in the full and proper sense (their
existing marriage is “diluted” and deprived of its intrinsic connection
to procreation and parenting). It also is an injustice to the children
raised by same-sex couples, since they are being knowingly deprived of
either a mother or a father.
Interestingly, Scandinavian countries,
which paved the way for the legal recognition of same-sex unions, were
reluctant to extend to such couples the ability to adopt or use
artificial techniques of reproduction—because they were concerned about
the effects of raising children this way. In the United States,
however, a number of states, among them Massachusetts and Vermont,
allowed same-sex couples to adopt before they allowed them to get
“married” or enter a “civil union.”
In conclusion, however the law treats same-sex relationships—and it
must be recognized that the law in western democracies is quite
permissive and tolerant of such relationships—there is no sense in
which they can be considered to be equivalent to marriage.
Statistics62% of Americans believe that marriage is the union of a man and a woman
Data from Scandinavia shows that gay male couples were 50 per cent more likel) to
divorce as married opposite-sex couples and lesbian couples 167 percent
more likel) to divorce as opposite-sex married couples over a similar
period of time. iMapp Policy Brief (2004)
Internet linksHere Come the Brides: Plural marriage is waiting in the wings
by Stanley Kurtz. Weekly Standard. 26 December 2005.
Arguments Against Same Sex
Witherspoon Institute (Princeton NJ). This concise essay lists ten arguments which militate against same-sex unions.
Policy Agenda: Polls of community attitudes in the US. Surveys about whether Americans
should accept homosexuality often draw different responses depending on
the examples mentioned.
Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-Being (2004)
The End of Marriage in Scandinavia: The "conservative case" for same-sex marriage collapses. (2004) by Stanley Kurz in The Weekly Standard.
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