Michael Bradley

Michael Bradley recently graduated magna cum laude from the University of Notre Dame with a B.A. in philosophy and theology. While at Notre Dame he served as editor-in-chief of the Irish Rover, and this summer is the inaugural Via Sapientiae Fellow with Ethika Politika.

American Bans on Same-Sex Marriage Do Not Exist

By | February 20, 2014

In my home state of Indiana, legislators are currently debating a potential amendment to the state constitution.

Section 2 of the House Joint Resolution No. 3 (formerly HJR-6) suggested (but no longer fully suggests, as the second sentence was voted down by the House earlier this 2014) amending Article 1, Section 38 of Indiana’s Constitution to read as follows:

“Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

As media sources statewide have covered the legislative proceedings, I have been surprised to encounter so often the claim that Indiana presently “bans” or “prohibits” same-sex marriage.

I am surprised because in no state of the Union does a ban or prohibition of same-sex marriage exist. This is true no matter where one stands in the marriage debates and no matter how one understands marriage.

The Oxford English Dictionary features several entries for the word “ban” that are relevant to this discussion.

One is: “A formal and authoritative prohibition; a prohibitory command or edict, an interdict.”

Another is: “A proclamation issued against any one by the civil power; sentence of outlawry.”

A third is: “Practical denunciation, prohibition, or outlawry, not formally pronounced, as that of society or public opinion.”

If public opinion polls are to be believed, then not even bans in the third sense exist in America today.

On the conjugal view, marriage is a comprehensive union of persons. “Comprehensive” here means that relational unity is achieved across every dimension of the spouses’ personhood, including the bodily union that is achieved through the coordination of the spouses’ reproductive systems for the sake of the good of procreation.

Thus, on the  conjugal view, marriage between two persons of the same sex—regardless of those persons’ intentions, sexual attractions or desires—is not possible. Indiana is not “banning” same-sex marriages in not recognizing same-sex relationships as “marriages.” It is simply refusing to equate X and not-X.

On the revisionist view, marriage is “the name that society gives to the relationship that matters most between two adults,” as one federal judge put it in 2011. It is “a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life,” as Harvard historian Nancy Cott testified in 2010 in opposition to California’s Proposition 8. Other revisionist definitions are very similar.

Thus, on the revisionist view, same-sex couples are able to form marriages, and do so rather frequently: Marriage is either a choice or a label. The present legal and juridical debates over how marriage is publicly defined is, therefore, about whether certain jurisdictions will publicly and legally recognize (affirm as really being) marriages between two persons of the same sex.

But if this is the case, it is apparent that no jurisdiction presently bans same-sex marriages; in no jurisdiction are they criminalized or illegal; they cannot be banned at all. On revisionism, marriage (let alone same-sex marriage) is either a choice or a label, and nowhere in America are (same-sex) couples prohibited or banned from making this choice or invoking this label. Those couples can even solemnize or religiously affirm their unions by being blessed in whatever church will bless their union.

Talk of “bans” on same-sex marriage indicates a fundamentally flawed grasp on what is really being argued, by anyone, in the debate. The question before various courts and state legislatures is not whether to lift bans or abolish prohibition on same-sex marriages. The question is whether every jurisdiction must, on the conjugal view, equate marriages with same-sex relationships; or, on the revisionist view, legally celebrate and recognize marriages that already exist. But for neither camp is any present legal or juridical battle about lifting a ban on same-sex marriage. It couldn’t be, because no such bans exist.

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  • Aaron Taylor

    Michael, this is a very well-written piece. Thank you. But, respectfully, this is the sort of argument that plays well to people who already oppose SSM, but I suspect is unhelpful in wider public debate. The meme that popped up on my facebook page for this summed it up: “Same-Sex Marriage: You Can’t Ban What Doesn’t Exist.” Now, I live in Massachusetts, a state where same-sex civil marriages are allowed, and some highly intelligent people support them. Such people would eviscerate this argument if I tried to use it. I’ll try and explain why … and my intention isn’t to maul your argument unnecessarily, but to try and raise the level of discussion …

    Firstly, bans on civil SSM exist by the very fact that they are not allowed, in the same way there is a “ban” on two 12-year-olds getting married, or a “ban” on a 10-year-old buying alcohol, even though you won’t find these cases expressly mentioned by the legislator. The basic principle of Common Law that “whatever is not forbidden is allowed” only applies to the *criminal* part of that Law. In other types of law (e.g., the Family Law governing marriage), the mere fact that a thing is not expressly permitted by the legislator is enough to qualify as a “formal and authoritative prohibition” on that thing being permitted to occur. You may be right to claim that this legal prohibition is based on a prior recognition by the legislator of a metaphysical fact about the nature of marriage. But that merely explains the philosophical *reason* for the civil prohibition. It doesn’t alter the fact that, at the legal level, a “formal and authoritative prohibition” does exist.

    Secondly, to unpack this a little further, the “revisionist” view of marriage presented here is a little unfair. Most revisionists are aware that they can have blessing ceremonies. But most revisionists do not see marriage as *merely* a private “label” or “choice.” Many of them also, like us, see it as an important civil/social institution, and therefore, like us, see it as important that society *as a whole* have a single more-or-less unified conception of what marriage is. And according to that conception, in a state like Indiana, same-sex marriages are prohibited insofar as they are not *publicly* permitted and recognized. That’s not to say I agree with the revisionist view. I don’t. But if we don’t present it accurately, it can’t be refuted.

    Thirdly, even though this ban is not a “criminalization,” as you rightly point out (there are different types of law, as I’ve said, apart from criminal law), many traditional marriage defenders seem to want a criminal ban. Robert George, for example, one of the co-authors of “What Is Marriage?”, has argued that homosexual sex should be criminalized. Many others agree. Even a private blessing ceremony in a liberal church could be enough to focus police attention on the couple in question as potential violators of the law. You might say that a blessing ceremony doesn’t provide sufficient evidence of sodomy, but let’s remember that the kind of culture we are talking about is one in which the police still actively hunt down and arrest people for homosexual sex even under invalidated laws: http://news.yahoo.com/la-city-police-arrested-men-under-sodomy-law-022555771.html

    Saying, “defenders of conjugal marriage don’t want to ban same-sex marriages, you can have your private blessing and live in peace,” sounds disingenuous when so many defenders of conjugal marriage do not in fact want to let same-sex couples live quietly but seem to want them to be prosecuted.

    Fourthly, Indiana does *not* have conjugal marriage anyway, at least not as the authors of “What Is Marriage?” define it: “a vision of marriage as a bodily as well an emotional and spiritual bond, distinguished by its comprehensiveness, which is, like all love, effusive: flowing out into the wide sharing of family life and ahead to lifelong fidelity” (p. 1)

    Any jurisdiction that allows no-fault divorces in which people can abandon marriage almost as easily than they can abandon a car-rental contract (i.e., almost every state in the US), fails to uphold a view of marriage that is a) unitive, b) distinguished by its comprehensiveness, c) flowing out into the family (children need stability), and d) perpetually faithful, just as any jurisidiction that allows SSM fails to uphold a view of marriage in which e) the comprehensive union in question is a *bodily* union.

    If we’re talking about marriage at the civil level, it would be more accurate to call Indiana’s legal conception of marriage the “licensed heterosexual sexual playground view,” whereas a state like Massachusetts could be called the “licensed gender-neutral sexual playground view.”

  • http://www.slowlyboiledfrog.com/ DavidHart

    Rubbish. In law, the concept of procreative or conjugal marriage does not exist. Marriage creates a marital estate. States defining marriage as one man and one woman did so specifically to ban same-sex marriage. Judges (some of who are quite conservative) are finding these bans unconstitutional.

  • Ken the Playful Walrus

    Good point. The activists and their biased media allies are deliberately being misleading in their language for the purposes of emotional manipulation There hasn’t been a ban anywhere in the US at least as far back as Lawrence vs. Texas was decided. Marriage was not created by any state. It is something that has existed everywhere in the world for thousands of years.

  • Sebonde

    If what is not given formal legal recognition is prohibited by the state, then it follows that friendships are prohibited. The state does not give friendships formal legal recognition.

  • goodasyou

    Yes. They do.

    Next.

  • Bill

    This is the position a 4th grader might take.

    It is laughable in its sheer stupidity.

  • Patrick

    By this logic, there’s also no ban underage drinking; you just have to be 21 to drink. It’s the same logic as someone who says “I don’t have a problem with minorities, I just think whites are better” and thinks they aren’t racist.
    A distinction without a difference is not a difference. You can play with semantics all you like, but in the real world, these laws are bans on same-sex marriage.

  • CAxlRose

    As Aaron so eloquently pointed out, this type of semantics argument works well for people who already oppose same-sex marriage, but contributes absolutely nothing to the larger debate.

    What your piece blatantly ignores, Michael, is that we’re talking about the state issuing a legally-binding CIVIL marriage license. We’re not talking about private a “label” or “choice.” Your argument presupposes that gay couples happily call each other “married” regardless of what the law says. And according to you that private label is all they really have anyway, since LGBT couples don’t fit the “conjugal” definition of marriage that you (incorrectly) believe in currently codified in Indiana law.

    But we’re not talking about definitions. We’re talking about civil law. If two men can get a marriage license in New York but not in Texas, would you say that same-sex marriage is permitted or prohibited in Texas? Another word for “prohibited” is….? See where I’m going with this?

    You also seem to be under the impression that something is “banned” only when attempts to do that thing would result in some sort of criminal penalty, which is ridiculously false.

    Speaking of legality, if that “conjugal” definition of marriage, or a comprehensive, permanent and exclusive union between a man and woman, was in fact codified in Indiana law, then adultery laws would still be in effect and divorce would be prohibited. This is why your Heritage Foundation buddies’ laughable attempt to fashion a definition for marriage and retroactively tack it on to state constitutional laws that were EXPRESSLY designed to Keep The Gays Away From Marriage have been been taken seriously by nobody except Justice Alito (in his lone dissent).

    Finally, your assertion that the questions before the courts are centered around the competing definitions of marriage (a Heritage talking point you copied and pasted VERBATIM) demonstrates that you haven’t bothered to read any of the court filings/rulings.

    Have you not read a single federal ruling that’s been handed down, most recently in FIVE consecutive states (NM, UT, OK, VA, KY)? Judges in all five states have ruled that the laws which did in fact BAN same-sex couples from receiving a civil marriage license were unconstitutional on Equal Protection grounds.

    You’re certainly welcome to believe that couples are filing suit and judges are hearing oral arguments and issuing opinions on non-existent same-sex marriage bans, but all that really does is make you look uninformed completely out-of-step with the marriage debate.

    If you think the state marriage laws are constitutional, then make a constitutional argument for them. But you insult your readers’ intelligence by pretending that these laws don’t do the very thing they were designed to do: Ban same-sex couples from receiving a civil marriage license.

  • James Anderson

    We were married in Canada in 2001 because marriage equality was banned in NY state where we live. Now NY state has lifted its ban. But if I travel to other states my legal marriage is not recognized because — altogether now — those states still BAN same-sex marriage.

    If you’re going to try to write about this in public at least reckon your readers have got their own copy of the OED and don’t need you to provide new definitions.

  • Observer

    This made it on to Ethika Politika? …

  • HenryBowers

    If they were banned, there would be punishments for enacting them. Plainly, however, no punishments can be identified, since the state denies the entity can be enacted at all. Hence, there is no ban.

  • HenryBowers

    False, there are penalties in effect for underage drinkers (and their guardians), because underage drinking can factually transpire.

  • HenryBowers

    Childish.

  • dover_beach

    “But most revisionists do not see marriage as *merely* a private “label” or “choice.” Many of them also, like us, see it as an important civil/social institution, and therefore, like us, see it as important that society *as a whole* have a single more-or-less unified conception of what marriage is.”

    Then their position is incoherent and/or self-serving. On the one hand, marriage is a private, emotional relationship that has no single or predominant end aside from their own private, emotional satisfaction; on the other hand, it is also a civil/ social institution that what? If there is no predominant public purpose to it then there is no sense in which it is a civil/ social institution. However, what you write above suggests that what is being sought is social approval of what is by their own lights entirely private.

    ” Any jurisdiction that allows no-fault divorces in which people can abandon marriage almost as easily than they can abandon a car-rental contract (i.e., almost every state in the US), fails to uphold a view of marriage that is a) unitive, b) distinguished by its comprehensiveness, c) flowing out into the family (children need stability), and d) perpetually faithful, just as any jurisdiction that allows SSM fails to uphold a view of marriage in which e) the comprehensive union in question is a *bodily* union.”

    This is a rather disingenuous argument aimed directly at those who are also, generally, opposed to no-fault divorce as well as SSM. You are in effect arguing that given the already acknowledged imperfections of current marriage law, that one more imperfection will not do any greater harm. Not a brilliant defense of SSM.

  • dover_beach

    Furthermore, no same-sex ‘married’ couple from Mass., etc. would be or is arrested travelling through or living in any state that does not recognize same-sex ‘marriage’; that is because SSM is not a crime in any state of the Union. However, as Henry notes above, any child drinking alcohol in a licensed establishment would be arrested, incl. the publican. Ergo, a failure to acknowledge X is not and never has been identical to or like a ban of X. They are effectively in the same situation as would exist if the state did not recognize marriage at all, which again, has never meant that the sate in such a circumstance banned marriage.

  • goodasyou

    The silly thesis that guides this column? I know, right! Obviously these are bans on marriage.

  • Lightning Baltimore

    Congratulations on a particularly egregious bit of intellectual dishonesty! Wherever same-sex marriage is not legal, it is, by definition, prohibited, so your very first point is invalid!

  • http://www.eggandsperm.org JohnHoward

    But we totally should ban, put people in jail for, conceiving offspring (or just doing anything that might possibly create offspring) of a same-sex couple. That’s what is allowed by marriage, and bans on marriage are intended to mean bans on conceiving offspring together. Like bans on marrying a sibling or niece or mother in law, the idea is to ban them conceiving offspring together. Those bans don’t ban them living together or anything except doing things (have sex) that might conceive offspring together.