Back to the blogging about books before I've even gotten close to finishing them portion of this blog. My sister gave me God vs. the Gavel for Christmas (no, polinerdism isn't genetic, why do you ask?), and so far I've enjoyed it, though occasionally I find myself wondering if the author isn't overstating her case that certain leniency towards religious institutions is always granting them special rights and unconstitutional. We'll see; so far I agree with the basic premise that the law should honor the 1st Amendment by being careful to treat religious institutions like everyone else, instead of assuming that they have some kind of special protections, and especially that laws should be analyzed with the idea of the social good in mind, and not with any sort of prejudice towards one's religious beliefs, even though that might be really hard for most people to do, since your religious beliefs color your idea of what the social good is, whether you want them to or not. But that's not what I'm going to address here so much as narrow in on the chapter I just finished where she criticizes religions mucking around in marriage law, or to be more specific, legislators who think that religious beliefs should be incorporated into crafting marriage laws.
She contrasts two arguments for changing marriage laws in her chapter to illustrate why it is exactly that she thinks religious influence needs to be scrubbed out of legislative thinking when it comes to looking at marriage laws. At first glance, the two arguments--one in favor of legalizing same-sex marriage and one in favor of legalizing polygamy--seem basically identical, which is to say that the people advocating for these changes feel that the marriage laws as they stand discriminate against them. But Hamilton argues that if you take a realistic look at the way religion factors into these arguments, then you start to see a much different picture emerge, because both controversies have someone arguing that their religious beliefs should dictate the law, but with same-sex marriage it's the opponents who are arguing this and with polygamy it's the proponents. If you start with her basic argument that it's antithetical to the 1st Amendment to allow law to be dictated by religious belief over other concerns like the greater social good, it's clear that these two reform movements are completely different--same sex marriage proponents are using a social good measure for their arguments and polygamy proponents are arguing that social good isn't a factor because their religious belief trumps it. To keep it simple.
I have to admit, I hadn't thought about it that way--so used to thinking in terms of strict human rights issues, I hadn't considered the larger social good as an important pro-gay rights argument, except insofar as human rights are part of the social good argument, though not all of it. Anyway, Hamilton's argument that there's not really a good argument for forcing the government to start issuing polygamous marriage contracts is pretty tight, so long as you start with the basic assumption that competing religious claims shouldn't be a factor, which is something I agree with. The arguments for polygamy are mostly that people who want it believe it gets you into heaven. People against it argue that polygamy is inherently anti-social because it discriminates against women and breeds abuse. Hamilton points out that even without these arguments against it, it's a legal nightmare because of inheritance issues, but she thinks that the abuse/inequality arguments are the strongest against it.
The United Nations agrees. From the book:
Polygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be be discouraged and prohibited.
That there is a statement from the Convention for the Elimination of All Forms of Discrimination Against Women, a UN creation. Reading that, I was honestly floored, because it occured to me then and there how rarely I hear women's equality invoked baldly as something that is a fundamental social value. I have no doubt that's because of the "fair and balanced" nature of our media--it's not nice to have one person arguing from a point of reason and the other side making ridiculous claims there's no logical argument for, as you have in the struggle between feminists and promoters of "tradition", when we all know the tradition is male dominance. On one hand, you have a side that is arguing that in order to measure a social good, you have to take all members of society into account. On the side of "tradition", you have....well, it's really hard to make an argument that disempowering slightly more than half of society and making them subservient to the other half is a general social good. Which of course is why anti-feminists are prone to making arguments about how loss of freedom and equality is actually good for women, from anti-choicers arguing that taking women's reproductive choices away is actually helpful to women to David Brooks arguing that domestic dependence is actually good for women. They can't even muster the strength to openly argue that women shouldn't count as members of society, so they openly lie about the effects of their belief systems instead.
All this made me think about what it is that we, as a society, want marriage to exist for, and where same-sex marriage fits into it all. As any patriarchy-blamer worth her weight in water and cat hair can tell you, marriage has existed throughout most of history in societies where the concept of the social good barely included women at all--women were another commodity and a means of production for men, who were the only real members of society. (Leaving the weighted values assigned to members of different classes aside for a moment, lest this get unwieldy.) Now it's fair to say that in this country we believe, in theory, that a woman is an equal member of society to a man and that promoting women's equality is more important than enshrining men's dominance over women. The question then is why do we even have marriage?
Well, Hamilton touches on the pro-marriage arguments, and I think they're pretty sound. Even if you admit that marriage existed primarily in the past as a tool of women's oppression, there are a lot of social benefits that one could reasonably argue we still need. There's no reason not to make the side benefits of traditional marriage--family, stability, etc.--the centerpiece of marriage now. Of course, as has been pointed out a million times before, if you want "marriage" to be an institution that is about partnerships and families, that removes all reasons for it to be a male/female institution, which it was in the past, when you needed different genders so you could know who was the owner and who was the property.
But all this made me wonder--if a government issues marriage licenses to promote the general welfare, which is the justification for it, and you define achieving equality between men and women as a critical goal, then aren't same-sex marriages something that should be actively promoted instead of merely tolerated? I think most of us who are proponents of the right to same-sex marriage argue that it's a social good because it helps gays and lesbians without creating any harm. But it's also an important step towards eradicating traditional marriage, which is in fact an important social goal, because traditional marriage is a huge obstacle in the way of creating equality not just between straights and gays but also between men and women. I understand the political importance of tip-toeing around this critical point, but it's also time to stop beating around the bush--any society that genuinely values the net social good is going to be opposed to traditional marriage, because traditional marriage is about subjugating half of society to the control of the other half.
Redefining marriage as a partnership instead of a way to maintain property rights over women's bodies should be a major social goal. I completely agree with conservatives who think that same-sex marriage would send a powerful signal that society doesn't respect traditional marriage anymore, though the process of dismantling traditional marriage has been underway for a long time now, with women gaining property rights, the right to divorce, etc. Hell, in my perfect world, we'd just ban "marriage" and replace it with civil unions for everyone, straight or gay, as a signal that society's priorities have completely changed and now we value equality, not ownership.
Anyway, my exercise for myself from here on out is to read arguments against same-sex marriage and look to see what principles they're arguing from. Assuming, as I do, that it's the tacit agreement across society that equality is in fact a goal, I'll throw out any arguments that are based on the idea that some people should simply have control over others. Any and all arguments from mere tradition go into this box, because that's what the tradition is. And all arguments based in religion go into the discard box as well, because there's no justification for a religion getting to boss everyone around, or else I can declare myself god and demand everyone has to put disco balls in their bedroom and that's good enough to make it law. We'll see if anything's left over. Commenters? Refresh me on if there is anything I'm forgetting.