The Essence of Marriage and Equality: The New Jersey Supreme Court Considers Same-Sex Marriage

By SHERRY F. COLB

Wednesday, Feb. 22, 2006

Last week, the New Jersey Supreme Court heard argument in Lewis v. Harris. The case asks whether the State Constitution's guarantee of equality requires New Jersey to permit gay couples to marry. The state intermediate appellate court last year ruled against the plaintiffs, holding that the legislature may decide whether or not to extend all of the benefits of marriage to gay people.

The issue of same-sex marriage may now force the highest court of New Jersey to confront important questions about what "marriage" and "equality" really mean.

What Is The Essence of Marriage?

To determine whether limiting marriage to heterosexual couples violates anyone's equality rights, it is necessary to define the "essence" of marriage. When people assert a previously unrecognized right to marry, they implicitly embrace the proposition that whatever distinguishes them from legally married couples is not relevant to the essential meaning of marriage. They can then join the institution without effectively dismantling it.

To give an outlandish example of departure from the marital "essence," if John Doe were to head to City Hall - in New Jersey or elsewhere - and attempt to marry himself, he would face serious obstacles. He would find it similarly impossible to marry his pet goldfish. Societies around the world view marriage as requiring that there be a relationship between different parties (and therefore, that John Doe marry someone other than himself) and that all members of the relationship be human. So far as I know, moreover, there is no constituency for challenging either of these two core marriage requirements.

Though John Doe's two hypothetical weddings are unlikely to qualify under anyone's notion of what constitutes a marriage, however, other examples may prove more difficult to exclude out of hand.

Marriage and Sexual Taboos

Consider polygamous relationships. At the present time, fundamentalist Mormons continue the practice of what is known as "celestial" or plural marriage. Yet no state in this country permits a person to marry more than one other individual. A majority of Americans appear to view marriage as essentially a two-person commitment.

Other examples of people viewed as perhaps inherently unqualified for marriage, are sibling relationships, parent/child relationships, and - crucially for our purposes - relationships between two people of the same sex.

What the second set of examples all share is that they involve relationships that - quite apart from whether they are recognized by marriage - trigger moral taboos of various strengths. Living with more than one spouse violates current norms, both religious and secular, about sexual fidelity to one partner in marriage. And taboos against incest and homosexuality are similarly familiar.

Gay marriage does, however, seem less troubling to many than these other examples of taboo relationships. Indeed, opponents of gay marriage like to cite incest and polygamy as points further along the slippery slope down which society will eventually descend if it permits same-sex couples to marry.

And as of the U.S. Supreme Court's decision in Lawrence v. Texas, states may no longer criminally prohibit gay couples from having sex. The Court has evidenced no similar inclination to invalidate criminal laws banning incest and polygamy.

To find a right to marry siblings or to marry groups of people, then, would require the Court to recognize, first, that such relationships are legitimate enough not to be subject to criminal penalties. For gay couples, the Supreme Court has already taken this first, and critical, step.

If same-sex coupling is not a threat that state governments may address through the criminal law, then one can argue with greater force that same-sex dyads really are - for all practical purposes - just like heterosexual married couples. If so, then there is no good reason for prohibiting such pairs from marrying.

Is Sex Essential To Marriage?

When debating the question of gay marriage, one of the "essential" characteristics of marriage that often goes unstated, is that it be between two people who are sexually interested in each other. Though not an official requirement, it is expected and implicitly understood. This is in fact why the various taboo relationships mentioned above would also make for taboo marriages: married people are expected to have sex, and people who should never be having sex with each other (like siblings or other people's spouses) must accordingly refrain from marrying each other as well.

But what if people with no intention of having sex with each other wish to marry? As a practical matter, a married couple is free to decide how often or even whether it will engage in sexual relations. Some couples have sex very frequently, while others go for months or years without sharing sexual intimacy. If two people have a reason for wanting to be committed to each other for life, but have no desire to have sex with each other, they can marry without anyone's taking (or even having occasion to take) notice.

Notwithstanding the ease with which a couple might hide its disinclination for sexual congress, though, the law nonetheless assumes and expects that married couples will have sex, and structures its explicit requirements accordingly. Thus, if a brother and sister are deeply committed to each other in platonic love and affection and want to live together for life, they may do so, but they cannot marry.

They cannot marry because it will either be the case that (a) they actually do plan to have sex as part of their marriage, and such a sexual relationship is prohibited to siblings, or (b) they really do have no intention of having sex, and marriage is essentially a relationship that includes sex.

Even if siblings stipulate that they will never have intercourse, and that they feel no desire for each other, the law will not grant them a marriage license. Sex and marriage go together.

Are Children Essential to Marriage?

Christian groups opposing gay marriage have asserted that the only reason the government has an interest in licensing marriage at all, is that people who marry can have children. Therefore, opponents conclude, marriage ought to be unavailable to same-sex couples.

There are two ways in which one might understand such an argument. First, two people of the same sex cannot, biologically, create a baby who is genetically the child of both members of the couple. While this is no doubt accurate, though, it does not apply solely to same-sex couples but to any couple in which one or both members is infertile. A man who has had a vasectomy is no more qualified to marry a woman - under this rationale - than two people of the same sex are to marry each other.

Furthermore, people can have children in a variety of ways, including sperm or egg donation, surrogacy, and the adoption of a biologically unrelated child. Few people would seriously suggest that heterosexual couples who plan to embark on such alternative forms of parenting ought to be denied the benefits of marriage. Nor would they suggest that the many married couples who have no intention of having children at all be denied the right to marry. Ordinary biological reproduction is simply not viewed as an essential ingredient of marriage.

Enemies of gay marriage may, of course, have another purpose in suggesting that marriage is for children. It is that the benefits of marriage are intended to encourage and help people to form families in which they will care for children, however those children might be conceived. Opponents of gay marriage may be suggesting, then, that even if sexual intimacy is generally be the business of consenting adults (a concession, incidentally, that most of them are loath to make), one's conduct in a home with children is very much the business of the State. And the State, under this approach, should be concerned about allowing or encouraging same-sex couples to make homes and families for impressionable children.

Sexual Morality: The Ultimate Basis of Arguments Against Gay Marriage

So it all goes back to morality -- just as the original criminal bans on gay sex, now constitutionally defunct, rested on alleged moral imperatives. It is not that marriage is "essentially" a relationship between a man and a woman.

If there is a potentially flawed essentialism about marriage, it lies in the contention that marriage and all of the benefits that attach do not extend to explicitly nonsexual unions, a point made compellingly by Martha A. Fineman in her book, The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies. Gay and lesbian couples, by contrast to the neglected non-sexual families, fit quite nicely into the existing marriage paradigm. They include two people who are sexually interested in one another, and the sexual relationship at issue is no longer subject to criminal penalties.

When opponents argue that a gay couple is not suited to raise children, they are simply re-litigating the argument that sexual intimacy between two women or between two men is morally wrong. If two older siblings were to undertake the parenting of their baby brother after their parents died in a plane crash, for example, no group would likely say that the siblings are inherently unfit to care for the baby. But when two women or two men are married, then their children "know" (in the way that children of heterosexual parents allow themselves, in moments of disgusted acknowledgement, to know) that their parents have sex, and - according to anti-gay-marriage activists -- children should not live in a home of such iniquity.

The argument should be a losing one, now that the Court has decided Lawrence. The State can no longer punish gay people for their intimate, consensual, sexual activities. And one must, in candor, recognize that locking same-sex couples out of an institution to condemn the "sinfulness" of their relationships punishes those couples, along with their children.

Though the New Jersey Supreme Court may not be ready to do the right thing in Lewis v. Harris, the truth about existing law will become increasingly apparent and ultimately decisive: The requirement of male/female couples for marriage is premised on a vicious and sectarian animus toward an innocent group of people. Our gay and lesbian citizens deserve better.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site.

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