RULES OF THE GAME: Corvino to me, on why marriage will still be sexually-regulatory even where homosexual couples are included: “Here Tushnet proffers the usual false dilemma: either marriage is solely male-female or else it ‘means whatever you want it to mean.’ But there’s plenty of reasonable middle ground between those polar (and false) alternatives.”

I don’t know if Gabriel Rotello coined the term “sexual ecology,” and I haven’t read his book of that title. But it seems to me really obvious that heterosexual, gay, and lesbian couples have different sexual ecologies. (This is true even when the heterosexual couple is infertile or quite old, because men and women are very differently-situated due to the complex interactions of biological differences and cultural expectations.) Those differing ecologies seem very likely to me to develop different rules, because they face different needs with different urgencies. I think Andrew Sullivan and the guys in this study are closer to the mark than Corvino when they suggest that gay marriage shifts the norms of monogamy in complex ways we don’t yet fully understand.

Put the same point another way: I find it fairly easy to understand why an infertile heterosexual couple, or a heterosexual couple in which both husband and wife are 80 years old, should nonetheless be sexually exclusive. I find it fairly easy to understand why heterosexuals should avoid premarital sex to the best of their ability (even though I realize that, human nature being what it is, this restraint will be scattershot at best). I am not sure how I would argue against safe-sane-consensual open gay relationships (especially when there are no children in the household) or how I would argue for abstinence until gay marriage. (I’ve talked with a couple of people who do hold the latter position, though they seemed a bit embarrassed by it!) The case against wild promiscuity, which is partly practical due to health concerns and partly philosophical due to concerns about the fragmentation of the self, is not really the same as the case for complete sexual exclusivity.

So maybe what I’m really asking—and this is not, or not solely, a question for Corvino but for those who share his “lots of differences matter in a marriage/sexual difference is not crucial” position—is whether they, too, distinguish between the rules and norms by which the infertile heterosexual couple should abide and the rules and norms by which the gay couple or lesbian couple should abide. Also, do they think that the urgency of these sexual norms is different for infertile heterosexual couples and gay or lesbian couples, and therefore the stringency of the norms should be different? If they do, then the word “marriage” no longer expresses a set of sexual norms, but rather at least two conflicting sets.

If they don’t, then I’d like to know whether a) they are expecting gay/lesbian couples to play by fairly strict rules in which sex before or outside of marriage is frowned upon, i.e. do they accept the “rollback, not containment” approach to marriage for every couple?,

b) they would like couples to assess their own fertility and other risks (e.g. the risks inherent in women’s vulnerability in heterosexual relationships) and abide by the rules of the risk-category into which they fall?,

c) they expect marriage to remain sexually-regulatory while maintaining a sort of internally “separate but equal” situation in which heterosexual couples play by the stringent rules while gay/lesbian couples work out different norms?,

or d) some mix of all of the above depending on where you live/which subcultures you belong to, or some other option I can’t think of right now?

I strongly suspect that a) will be rejected by most gay people, b) overestimates humans’ rationality and ability to accurately assess their own risks (this inability is what we have social institutions and iconography for—I’m reminded of the friend who remarked, when someone asked him what time our debating society was meeting, “It’s meeting at 7.45, because it always meets at 7.45. Traditions are how people who can’t remember anything manage their lives!”), and c) is an unstable situation in which, again, “marriage” per se implies no especial set of sexual norms.

(You may say that this last situation is precisely the one in which we find ourselves today. See previous post re: that’s a bug not a feature, aka I want rollback not containment.)