In discussing the legal debate over gay marriage, Michael W. Hannon cites an important, but generally ignored distinction:
Think back to the embarrassing and obnoxious response your teacher used to give when a student would ask, “Can I go to the bathroom?” “I don’t know,” she would say, “Can you?” The child’s mistake lay in confusing “Can I?”—an interrogative dealing with possibility—with “May I?”—which pertains rather to permissibility. Instead of asking whether he was allowed to go to the bathroom, the confused pupil accidentally asked if he was capable of that feat at all. Yet childhood errors have a way of coming back to haunt us, and that is precisely what has happened in the debate over redefining marriage.
Olson, Boies, and their allies have systematically confused a debate about metaphysical possibility with one about political permissibility. They are arguing that our government ought to let same-sex couples marry, and they are convinced that their opponents are arguing over the same point, just on the other side of the issue.
But that is a gross mischaracterization of the disagreement. For our position is not that the government should refuse to let such couples marry, but rather that the government is utterly impotent with regard to this question. Our response to same-sex couples desirous of marriage is not “You may not,” but rather, “You cannot.” We do not seek to bar anyone from marriage; we just believe marriage is a union that is necessarily and by its very nature heterosexual. Maybe we are right, or maybe Olson and Boies are. But regardless, the question to be settled in this debate is not whether to bring a latent potency into actuality, but whether there is in fact any potency present in the first place.
Framing the issue as a “May I?” dispute allows the superlawyers their stirring rhetoric about prejudice and civil rights. But, more perniciously, this mischaracterization also allows them to conceal the circularity of their argument for those discrimination claims.
Boies and Olson’s underlying judgment is that, because same-sex couples could get married if only the government would let them, marriage is therefore not necessarily a heterosexual institution. And at that point, the pair understandably concludes that there remains no principled reason to oppose the legal redefinition of marriage, since they have established that sexual difference has no bearing on the nature of marriage at all. In Yoshino’s words, they think that, shorn of any principled objections, the adversaries to their policy must be motivated merely by “pride, prejudice, and fear.”
But their argument presumes exactly what it was meant to prove. If you begin by saying that it is within the government’s power to extend marriage to same-sex couples, then of course sexual difference is not an essential feature of marriage. If you frame this as a “May I?” disagreement, then you necessarily treat the “Can I?” question as already settled. But that line of thinking fatally begs the question, because the “Can I?” question is not settled at all.
For if those of us who oppose the legal enshrinement of so-called “same-sex marriage” are correct, then the government can no more make same-sex couples married than it can make pi equal to three. In other words, no judicial or legislative fiat can make two men married if marriage is by its very nature heterosexual. And since that is the true point of contention in this debate, presuming that the government has the power to extend marriage to same-sex couples cannot serve as the starting point for discussion.