Lincoln’s Five-Legged Dog: An Realist Argument Against Redefining Marriage

Timothy Dalrymple recently wrote a provocative post listing “Ten Things I Believe About Evangelicals and Same-Sex Marriage.” I agree almost completely with each of the ten items, as would, I suspect, most evangelicals. Within this context Tim asks:

(P1) Should we hold fast to our convictions, profess those convictions publicly, and organize legally and politically to ensure that the laws reflect our convictions – OR (P2) should we hold fast to our convictions, profess those convictions publicly, and accept a legal definition of marriage that does not preclude same-sex marriage?

I would reframe Tim’s question in a slightly different way: Should we accept a legal definition of marriage that redefines the term in a way that does not correspond to reality? I am, in the most basic sense, a “legal realist”: If a law does not correspond to reality, and is thus incoherent, then it it cannot be a legitimate law. The same holds true for “same-sex marriage.” No matter what sort of impossible nonsense the legal system tries to impose, evangelicals should stand firmly on the side of reality.

Eight years ago I wrote a post that I think is still relevant to this point, so I thought it would be worth dusting off and reposting.

***

Abraham Lincoln was fond of asking, “If you call a dog’s tail a leg, how many legs does a dog have?” “Five,” his audience would invariably answer. “No,” he would politely respond,” the correct answer is four. Calling a tail a leg does not make it a leg.”

Like Lincoln’s associates, many of our fellow citizens appear to fall for the notion that a change of name causes a change in essence. A prime example is the attempt to change the definition of marriage to include same-sex unions. Simply calling such relationships “gay marriages”, they believe, will actually make them “marriages.” Such reasoning, however, is as flawed as thinking that changing “tail” to “leg” changes the function of the appendage.

In order to understand whether marriage can be legitimately redefined by the government we must first understand its relation to the state. Fortunately, we only have two options to choose from. Marriage is either an institution that has an existence and autonomy apart from the state or it’s a construct that only comes into being after being created by positive law.

If marriage is autonomous and separate from the state, the common view for the past 5,000 years, then the government cannot simply define the term in any way it chooses. Because the two institutions stand apart, they can decide whether to recognize the legitimacy of the other but they cannot delineate each others boundaries. In this way, the relationship is similar to nation-states. The U.S. government, for example, can decide to “recognize” the state of Israel but it cannot redefine the country in a way that contracts its border to exclude the Gaza Strip. The U.S. either recognizes Israel as it defines itself or it rejects its legitimacy altogether.

Whether they would articulate it this way, I suspect this is what most Americans mean when they claim that the government does not have the right to redefine marriage. The fact that such an argument even needs to be made shows how degraded and confused both language and law have become.

But what if marriage is a social construct that is created by the state? If we assume this is true then we must admit that the state has the right to change and redefine the meaning of marriage in any way it chooses. Naturally, this would be good news for gay marriage advocates. It will also be welcome news for polygamists and those in incestuous relationships. After all, if the government is allowed to expand the definition in order not to discriminate against homosexuals, then it should not exclude other groups either.

Gay marriage advocates, however, bristle at the idea that polygamists should have the same “rights” that they seek for homosexuals. While they lobby for a redefinition of marriage, they want to do so in a way that includes same-sex unions but will still exclude other minority interests that they themselves do not recognize as legitimate. Their reasons for closing the marriage gate behind them are remarkably similar to the ones given by their opposition. Unfortunately, the irony of their “bigotry” appears to be lost on them.

Naturally, it would take a radical reinterpretation of both history and law to draw the conclusion that marriage is solely a creation of the state. But if such a view is espoused then it opens other areas for possible reinterpretation. Can I as a blue-eyed, light skinned Caucasian petition the government to “redefine” my race in order to take advantage of affirmative action programs? If not, then what would be the argument against such a redefinition? If the boundaries of marriage can be stretched then shouldn’t other institutions (and race has indeed become an institution) be open as well?

And why should the government have sole control over the lexicon? Why shouldn’t the common man—like me—be able to redefine words in whatever way we choose? Think of the possibilities! I could call my dog’s tail a leg, take him to the dog track, and make a fortune by winning every race. No matter how fast the other dogs ran they wouldn’t be able to keep up with my five-legged canine.

  • Thrownaway

    You said: Simply calling such relationships “gay marriages”, they believe, will actually make them “marriages.”

    In what way is a committed same-sex couple’s partnership different from a heterosexual partnership?

    • http://www.valhallavoice.com valhallavoice

      Either it is an institution apart from the state, to be recognized or not, or it is an institution of the state to be afforded to any number of situations. What do you believe what about polygamy, incest and marrying the horse? If the state defines marriage and marriage is not otherwise known where would you stop?

      • Thrownaway

        I believe that civil partnerships are built around consent, and the old saw about marrying a horse ignores the rather important fact that a horse is not able to consent to a legally binding contract. It is an insulting argument, btw, to equate consensual adult relationships with bestiality and incest. The real problem I’ve had with polygamy historically is that it is often used to trap young people below the age of consent into marriages that they do not know how to escape. A true polyamorous marriage where all are consenting adults who know what marriage means to their lives does me no harm, so no, I have no problem with it when it is entered into freely.

        Marriage is defined in the courts so the bit about ‘not otherwise known’ is disingenuous. We have a framework to build on, why not open it to include those who can benefit from the massive umbrella of rights and privileges that come with that concept? Here’s what marriage means, roughly (and here is where I point out that I Am Not A Lawyer or Politician.) Marriage is a contract between two people to bind them together legally and financially, to share trials and triumphs and have each other’s back. Am I wrong? Is there something about this definition (which I realize not everyone shares) that precludes same sex couples from entering into it?

        If the couple chooses, they can also have their marriage ratified by the religious denomination of their choice, but the fact that this is not legally required means that frankly, it’s not religion’s business what the government calls ‘marriage.’

        If I were to get married, would it do you harm?

  • kate

    I rebuke you in the name of Jesus Christ.

  • Thrownaway

    Is that aimed at me? If it is, is it sarcasm?

  • Josh Lyman

    Basically, this argument boils down to “Nu uh! Is not!”
    My real question is, how do you know if marriage predates the state? We don’t have any actual records of marriages that existed before the state did, which is hardly surprising, since we have very few records of anything that existed before the state. We know, however that marriage does predate any of the religions that people follow today, so does that mean that these religions don’t get decide what form a marriage can take? And then we are left with the question of who does get to decide?

  • http://peicurmudgeon.wordpress.com peicurmudgeon

    The state’s interest in marriage is essentially legitimizing the contract between two people. By entering into that contract those two people agree to be bound by the laws that the state has established for that agreement. Some of these laws, such as shared property, can be circumvented through the use of a prenuptual agreement, another contract. The state though its legislative or judicial branches has the right to redefine the essenses of those contracts. Thus, the recent changes in some jurisdictions for common-law marriages of a certain duration automatically accrue some of the property and survivor benefits of the marriage contract. The state also occasionally alters the terms of dissolving the marriage contract. A religious leader who solemnizes a marriage does so as a resentative of the state.

    It seems to me that religion has no place in defining marriage for the state.

  • http://www.patheos.com/blogs/joecarter Joe Carter

    The state’s interest in marriage is essentially legitimizing the contract between two people.

    That has not historically been the State’s interest in marriage. If it were, then the government would consider civil unions a suitable alternative to marriage and there would be no need to change marriage laws. The State’s interest in marriage has always been primarily with the protection of children.

    It seems to me that religion has no place in defining marriage for the state.

    Marriage is an institution that existed before organized states or organized religions. Neither religion nor the state has the right or the authority to redefine marriage.

  • http://peicurmudgeon.wordpress.com peicurmudgeon

    I am still wondering though, shy Ms. Hamilton is upset about people who push for the legal standing of a separation of church and state.

    • http://peicurmudgeon.wordpress.com peicurmudgeon

      Why, not shy.

      • http://www.peicurmudgeon.com peicurmudgeon

        oops. Too many open windows.

  • Joe Canner

    For thousands of years, marriage was a contract between two families. In the Middle Ages, the church got involved in sanctioning marriages. Government has only been in the marriage business for a few hundred years and then only to preclude certain types of marriages (inter-racial, too closely related, mentally or physically deficient partners, etc.). So, if governments can prevent people of two races from marrying (contra traditional marriage) why can’t it allow two people of the same gender to marry?

    In your response to “peicurmudgeon” above, you suggest that civil unions would be an acceptable solution. I would agree, provided such unions are recognized nation-wide and have the same legal rights as marriages. Many European countries have been doing this for years, with civil unions to obtain legal benefits and church weddings for those interested in the spiritual benefits. If this is a good solution, why haven’t conservative Christians supported it more strongly?

    • Joe Carter

      So, if governments can prevent people of two races from marrying (contra traditional marriage) why can’t it allow two people of the same gender to marry?

      Let’s reverse your question, “If government call allow two people of the same gender to marry, why can’t it prevent two people of two races from marrying (contra traditional marriage)? The answer is that the government could logically do that. But the government overstepped its authority in denying interracial marriage. That was an illegitimate “redefining” of marriage that should have never been tolerated.

      If this is a good solution, why haven’t conservative Christians supported it more strongly?

      Many do, but with one caveat: the civil unions should be desexualized. The State should have no interest in either affirming or normalizing homosexual sex. So sexual activity should not be a requirement in civil unions. Any two adults—whether two elderly sisters, two friends, etc.—should be allowed to form a contractual relationship that allows them certain legal rights. Would you be in favor of that?

      • Joe Canner

        Technically, any two opposite-gender non-related people can already get married; there are no legal requirements that married couples have sex. Green Card marriages would be one such example. In any event, I think I agree that civil unions should be allowed for any two people. This would be especially helpful to older singles who would like to easily obtain hospital visitation rights, end-of-life rights, inheritance rights, etc. Of course, ICE might have to change immigration policy vis-a-vis marriage vs. civil union.

        • http://www.flickr.com/photos/8601342@N03/ Gregory Peterson

          I think that there is, in Great Britain at least. It isn’t legally a marriage until it’s consummated, I’ve read. Which brings a problem of legal definitions with the marriages of same-sex couples…what does “consummated” mean for them? Gay sex (like straight sex, for that matter) doesn’t necessarily mean the penetration of a vagina by a penis, or penetration at all…but that’s apparently the definition of “consummate.”

  • http://www.peicurmudgeon.com peicurmudgeon

    I don’t know where you get the idea that the state’s traditional interest in marriage was anything other than a contract. Even in pre-biblical times, marriages were often entered into for political reasons.

    Different religious sects have difffering concepts on the rights and responsibilities of each partner, the state has one law for all. To suggest that religion trumps state in this is to suggest that property laws, etc should be based upon religious lines.

  • Benjamin

    I lost it at “evangelicals should stand firmly on the side of reality.”

  • Dorfl

    “If marriage is autonomous and separate from the state, the common view for the past 5,000 years”

    Could you give a source for this figure? I have trouble figuring out how you can know what the common view on anything was 5000 years ago.

  • http://www.flickr.com/photos/8601342@N03/ Gregory Peterson

    One thing that America’s enslaved ancestors have taught us is that you don’t need legal recognition to have a marriage. You need a couple willing to jump the broom together, and a family and a community that recognizes that they are married, regardless of any legal recognition and protections. That is the way things are now in most of the United States for married Gay couples. No legal recognition of their marriages, but community and family recognition of their marriages.

    The marriage equality movement isn’t about redefining traditional marriage, that was done when love became a sort of prerequisite for marriage and men stopped buying brides for their sons.

    Traditional marriage was often a contract between two men for the delivery of a certified virgin female. Men of some means could always find their soul mate, of either sex, outside of marriage, as long as the soul mate was also submissive to them, like an unmarried woman such as a concubine…or as in the story of Jesus and the Centurion, a male slave…the old “active-passive” thing.

    Not all marriages were bought and arranged by a father, however. If memory serves, St. Augustine’s widowed mother, also a saint, arranged for him to be betrothed to a girl from a good family…who was four years younger than his beloved 16 year old son by his long time mistress. She either went back to Africa in a huff, or was sent there. The arranged marriage apparently didn’t happen. I don’t know why.

    The marriage equality movement isn’t about Gay people marrying…they will their marriages into being regardless of legal recognition and legal protections. The marriage equality movement is about legal reform in the interests of fairness and economic justice. It is a civil rights issue, separate but equal civil unions just won’t do as separate isn’t equal. And, as the President pointed out, it’s also a Golden Rule issue.

    • Andrew

      All of my agreement goes with this

  • http://www.flickr.com/photos/8601342@N03/ Gregory Peterson

    A tail may not be a leg, but as you point out, it is a fifth appendage on a dog (perhaps a sixth for males? Do big floppy ears count as appendages?) Anyway, no matter how you count them, a dog usually has more than four appendages, some of which are legs, some of which are not. All of them together help to define what a dog is and what a dog does. Yet, a dog can live quite adequately without some appendages and still be a dog. A tail appendage usually has useful functions, often a social signaling one, and in some species, a tail helps the legs do their function, such as helping the animal make quick changes of direction while running.

    So…you can think of the marriages between, say, Gay men, as one of several types of marriage appendages. Same-sex, other-sex, May-December, arranged, love match, levirate, royal, shot gun…(not many of the latter in Gay relationships…lol)

    In any case, Gay people aren’t dogs, as you seem to be tacitly suggesting. They are fully functioning, consenting adult humans who have found their soul mate. If they say they’re married, they’re simply married, regardless of legalities, anecdotes, traditions, sacred text eisegesis and debating tactics. You say, “Congratulations!”

    You can define marriage for yourself, but…judging from what this dreadful race traitor heard on the edge of the Bible Belt about what use to be called the “sin of miscegenation Acts 17:26 unnatural like incest your miserable children will be scorned by everyone,” you should be careful about defining what is a marriage for mutually consenting, tax paying, law abiding, adequately responsible, loving, non-sexual predator adult citizens. After all, your children might fall in love and marry when they grow up. Congratulations!

  • Rain

    “Such reasoning, however, is as flawed as thinking that changing ‘tail’ to ‘leg’ changes the function of the appendage.”

    Bad analogy, since marriage is an institution that exists merely by having been “defined” into existence. It is what people agree it is. Surely you disagree with that because you think marriage was a fiat by god, but at least it exposes your “realist” argument for what it really is: a religious argument.

    • Rain

      I should amend my comment in a couple of places.

      1. Surely you disagree with that because you (at the very least pretend like you) think marriage was a fiat by god,

      2. what it really is: a religious (or, to be charitable, a moral) argument

      I’m being charitable on both counts since I have a hard time believing that people actually believe the ridiculous crap that they (at least pretend like they) believe. Especially those who make personal profits from “spreading the good news”.

  • Silverite

    Your comment re: Israel and the Gaza Strip is faulty because Israel has never formally annexed the Gaza Strip, nor does it “officially” claim it in any capacity. Few Israeli politicians expect Gaza to ever be part of Israel, at least in the foreseeable future; only the extremists on the Kahanist fringe say otherwise. Hamas is just too strong and radical right now, this is one of those “How do you get a leopard out of a tree? Very….carefully….” situations, and all mainstream Israelis realize that.

    A better analogy would be the Golan Heights (which Israel _has_ formally annexed, and no other country including the US has recognized) or East Jerusalem (same situation). If the US wanted to improve its frayed relations with Israel it could formally recognize Israel’s claim to (at least most of) the Golan Heights, becoming the first nation-state other than Israel itself to do so. Almost all of the Golan’s Syrian population lives in four large towns right on the border; transfer these back to Syria and the rest of the Golan is almost all Jewish (plus Druze with Israeli citizenship), so there would be no demographic problems with it becoming Israel’s 7th district. It might tick off Syria, but right now the Syrians are too busy fighting each other for that to be very much of a concern.


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