A pair of civil rights lawyers from the ACLU took on the case, which finally made its way to the U.S. Supreme Court in 1967, where the justices--upon reviewing the story--unanimously begged to differ with the idea that modern civil law should be based on biblical exegesis. (To its everlasting credit, the Roman Catholic Church itself had issued a public statement only a few months earlier, expressing its unqualified support for interracial marriage.) The Supreme Court sealed the legality of Richard and Mildred's union in a 9-0 ruling, and with this ringing statement: "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."
At the time, I must also mention, a poll showed that 70 percent of Americans vehemently opposed this ruling. Let me repeat that: In recent American history, seven out of ten Americans still believed that it should be a criminal offense for people of different races to marry each other. But the courts were morally ahead of the general population on this matter. The last racial barriers were removed from the canon of American matrimonial law, and life went on, and everyone got used to the new reality, and the institution of marriage did not collapse for having had its boundaries adjusted just that tiny bit wider. And although there still may be people out there who believe that the intermingling of races is abhorrent, you would have to be an extreme fringe racist lunatic these days to seriously suggest aloud that consenting adults of different ethnic backgrounds should be excluded from legal matrimony. Moreover, there is not a single politician in this country who could ever win election to high office again by running on such a contemptible platform.
We have moved on, in other words.
You see where I'm heading with this, right?
Or rather, you see where history is heading with this?
What I mean to say is: You won't be surprised, will you, if I now take a few moments to discuss the subject of same-sex marriage? Please understand that I realize people have strong feelings on this topic. Then-congressman James M. Talent of Missouri undoubtedly spoke for many when he said in 1996, "It is an act of hubris to believe that marriage can be infinitely malleable, that it can be pushed and pulled around like Silly Putty without destroying its essential stability and what it means to our society."
The problem with that argument, though, is that the only thing marriage has ever done, historically and definitionally speaking, is to change. Marriage in the Western world changes with every century, adjusting itself constantly around new social standards and new notions of fairness. The Silly Putty-like malleability of the institution, in fact, is the only reason we still have the thing at all. Very few people--Mr. Talent included, I'll wager--would accept marriage on its thirteenth-century terms. Marriage survives, in other words, precisely because it evolves. (Though I suppose this would not be a very persuasive argument to those who probably also don't believe in evolution.)
In the spirit of full disclosure, I should make clear here that I'm a supporter of same-sex marriage. Of course I would be; I'm precisely that sort of person. The reason I bring up this topic at all is that it irritates me immensely to know that I have access, through the act of marriage, to certain critical social privileges that a large number of my friends and fellow taxpayers do not have. It irritates me even more to know that if Felipe and I had happened to be a same-sex couple, we would have been in really big trouble after that incident at the Dallas/ Fort Worth Airport. The Homeland Security Department would have taken one look at our relationship and thrown my partner out of the country forever, with no hope of future parole through marriage. Strictly on account of my heterosexual credentials, then, I am allowed to secure Felipe an American passport. Put in such terms, my upcoming marriage starts to look something like a membership at an exclusive country club--a means of offering me valuable amenities that are denied to my equally worthy neighbors. That sort of discrimination will never sit well with me, only adding to the natural suspicion I already feel toward this institution.
Even so, I'm hesitant to discuss in much detail the specifics of this particular social debate, if only because gay marriage is such a hot issue that it's almost too early to be publishing books about it yet. Two weeks before I sat down to write this paragraph, same-sex marriage was legalized in the state of Connecticut. A week after that, it was declared illegal in the state of California. While I was editing this paragraph a few months later, all hell broke loose in Iowa and Vermont. Not long after that, New Hampshire became the sixth state to make same-sex marriage legal, and I'm beginning to believe that whatever I declare today about the gay marriage debate in America will most likely be obsolete by next Tuesday afternoon.
What I can say about this subject, though, is that legalized same-sex marriage is coming to America. In large part this is because non-legalized same-sex marriage is already here. Same-sex couples already live together openly these days, whether their relationships have been officially sanctioned by their states or not. Same-sex couples are raising children together, paying taxes together, building homes together, running businesses together, creating wealth together, and even getting divorced from each other. All these already existing relationships and social responsibilities must be managed and organized through rule of law in order to keep civil society running smoothly. (This is why the 2010 U.S. Census will be documenting same-sex couples as "married" for the first time in order to chart clearly the actual demographics of the nation.) The federal courts will eventually get fed up, just as they did with interracial marriage, and decide that it's far easier to let all consenting adults have access to matrimony than it is to sort out the issue state by state, amendment by amendment, sheriff by sheriff, personal prejudice by personal prejudice.
Of course, social conservatives may still believe that homosexual marriage is wrong because the purpose of matrimony is to create children, but infertile and childless and postmenopausal heterosexual couples get married all the time and nobody protests. (The archconservative political commentator Pat Buchanan and his wife are childless, just as one example, and nobody suggests that their marital privileges should be revoked for failure to propagate biological offspring.) And as for the notion that same-sex marriage will somehow corrupt the community at large, nobody has ever been able to prove this in a court of law. On the contrary, hundreds of scientific and social organizations--from the American Academy of Family Physicians, to the American Psychological Association, to the Child Welfare League of America--have publicly endorsed both gay marriage and gay adoption.
But gay marriage is coming to America first and foremost because marriage here is a secular concern, not a religious one. The objection to gay marriage is almost invariably biblical, but nobody's legal vows in this country are defined by interpretation of biblical verse--or at least, not since the Supreme Court stood up for Richard and Mildred Loving. A church wedding ceremony is a nice thing, but it is neither required for legal marriage in America nor does it constitute legal marriage in America. What constitutes legal marriage in this country is that critical piece of paper that you and your betrothed must sign and then register with the state. The morality of your marriage may indeed rest between you and God, but it's that civic and secular paperwork which makes your vows official here on earth. Ultimately, then, it is the business of America's courts, not America's churches, to decide the rules of matrimonial law, and it is in those courts that the same-sex marriage debate will finally be settled.
Anyhow, to be perfectly honest, I find it a bit crazy that social conservatives are fighting so hard against this at all, considering that it's quite a positive thing for society in general when as many intact families as possible live under the estate of matrimony. And I say this as someone who is--I think we can all agree by now--admittedly suspicious of marriage. Yet it's true. Legal marriage, because it restrains sexual promiscuity and yokes people to their social obligations, is an essential building block of any orderly community. I'm not convinced that marriage is always so terrific for every individual within
the relationship, but that's another question altogether. There is no doubt--not even within my rebellious mind--that in general, matrimony stabilizes the larger social order and is often exceedingly good for children.1
If I were a social conservative, then--that is to say, if I were somebody who cared deeply about social stability, economic prosperity, and sexual monogamy--I would want as many gay couples as possible to get married. I would want as many of every kind of couple as possible to get married. I recognize that conservatives are worried that homosexuals will destroy and corrupt the institution of marriage, but perhaps they should consider the distinct possibility that gay couples are actually poised at this moment in history to save marriage. Think of it! Marriage is on the decline everywhere, all across the Western world. People are getting married later in life, if they're getting married at all, or they are producing children willy-nilly out of wedlock, or (like me) they are approaching the whole institution with ambivalence or even hostility. We don't trust marriage anymore, many of us straight folk. We don't get it. We're not at all convinced that we need it. We feel as though we can take it or leave it behind forever. All of which leaves poor old matrimony twisting in the winds of cold modernity.
But just when it seems like maybe all is lost for marriage, just when matrimony is about to become as evolutionarily expendable as pinkie toes and appendixes, just when it appears that the institution will wither slowly into obscurity due to a general lack of social interest, in come the gay couples, asking to be included! Indeed, pleading to be included! Indeed, fighting with all their might to be included in a custom which may be terrifically beneficial for society as a whole but which many--like me--find only suffocating and old-fashioned and irrelevant.
It might seem ironic that homosexuals--who have, over the centuries, made an art form out of leading bohemian lives on the outer fringes of society--want so desperately now to be part of such a mainstream tradition. Certainly not everyone understands this urge to assimilate, not even within the gay community. The filmmaker John Waters, for one, says that he always thought the only advantages of being gay were that he didn't have to join the military and he didn't have to get married. Still, it is true that many same-sex couples want nothing more than to join society as fully integrated, socially responsible, family-centered, taxpaying, Little League-coaching, nation-serving, respectably married citizens. So why not welcome them in? Why not recruit them by the vanload to sweep in on heroic wings and save the flagging and battered old institution of matrimony from a bunch of apathetic, ne'er-do-well, heterosexual deadbeats like me?
In any case, whatever happens with gay marriage, and whenever it happens, I can also assure you that future generations will someday find it ridiculous to the point of comedy that we ever debated this topic at all, much the same way that it seems absurd today that it was once strictly illegal for an English peasant to marry outside of his class, or for a white American citizen to marry someone of "the Malay race." Which brings us to the final reason that gay marriage is coming: because marriage in the Western world over the last several centuries has been moving--slowly but inexorably--in the direction of ever more personal privacy, ever more fairness, ever more respect for the two individuals involved, and ever more freedom of choice.
You can chart the beginning of the "marital freedom movement," as we might call it, from sometime around the mideighteenth century. The world was changing, liberal democracies were on the rise, and all over western Europe and the Americas came a massive social push for more freedom, more privacy, more opportunities for individuals to pursue their own personal happiness regardless of other people's wishes. Men and women alike began to express ever more vocally their desire for choice. They wanted to choose their own leaders, choose their own religions, choose their own destinies, and--yes--even choose their own spouses.
Moreover, with the advancements of the Industrial Revolution and the increase in personal earnings, couples could now afford to purchase their own homes rather than live forever with extended family--and we cannot overestimate how much that social transformation affected marriage. Because along with all those new private homes came . . . well, privacy. Private thoughts and private time, which led to private desires and private ideas. Once the doors of your house were closed, your life belonged to you. You could be the master of your own destiny, the captain of your emotional ship. You could seek your own paradise and find your own happiness--not in heaven but right there in downtown Pittsburgh, for instance, with your own lovely wife (whom you had personally selected, by the way, not because it was an economically advantageous choice, or because your family had arranged the match, but because you liked her laugh).
One of my personal hero-couples of the marital freedom movement were a pair named Lillian Harman and Edwin Walker, of the great state of Kansas circa 1887. Lillian was a suffragette and the daughter of a noted anarchist; Edwin was a progressive journalist and feminist sympathizer. They were made for each other. When they fell in love and decided to seal their relationship, they visited neither minister nor judge, but entered instead into what they called an "autonomistic marriage." They created their own wedding vows, speaking during the ceremony about the absolute privacy of their union, and swearing that Edwin would not dominate his wife in any way, nor would she take his name. Moreover, Lillian refused to swear eternal loyalty to Edwin, but stated firmly that she would "make no promises that it may become impossible or immoral for me to fulfill, but retain the right to act always as my conscience and best judgment shall dictate."
It goes without saying that Lillian and Edwin were arrested for this flouting of convention--and on their wedding night, no less. (What is it about arresting people in their beds that always signals a new era in marriage history?) The pair were charged with failure to respect license and ceremony, with one judge stating that "the union between E.C. Walker and Lillian Harman is no marriage, and they deserve all the punishment which has been inflicted upon them."
But the toothpaste was already out of the tube. Because what Lillian and Edwin wanted was not all that different from what their contemporaries wanted: the freedom to enter into or dissolve their own unions, on their own terms, for private reasons, entirely free from meddling interference by church, law, or family. They wanted parity with each other and fairness within their marriage. But mostly what they wanted was the liberty to define their own relationship based on their own personal interpretation of love.
Of course, there was resistance to these radical notions. Even as early as the mid-1800s, you start to see prim, fussy, social conservatives suggesting that this trend toward expressive individualism in marriage would spell out the very breakdown of society. What these conservatives specifically predicted was that allowing couples to make life matches based purely on love and the whims of personal affection would promptly lead to astronomical divorce rates and a host of bitterly broken homes.
Which all seems ridiculous now, doesn't it?
Except that they were kind of right.
Divorce, which had once been vanishingly rare in Western society, did begin to increase by the midnineteenth century--almost as soon as people began choosing their own partners for reasons of mere love. And divorce rates have only been growing higher since as marriage becomes ever less "institutional" (based on the needs of the larger society) and ever more "expressively individualistic" (based on the needs of . . . you).
Which is somewhat hazardous, as it turns out. Because here comes the single most interesting fact I've learned about the entire history of marriage: Everywhere, in every single society, all across the world, all across time, whenever a conservative culture of arranged marriage is replaced by an expressive culture of people choosing their own partners based on love, divorce rates will immediately begin to skyrocket. You can set your clock to it. (It's happening in India right now, for instance, even as we speak.)
About five minutes after people start clamoring for the right to choose their own spouses based on love, they will be
gin clamoring for the right to divorce those spouses once that love has died. Moreover, the courts will start permitting people to divorce, on the grounds that forcing a couple who once loved each other to stay together now that they detest each other is a form of wanton cruelty. ("Send the husband and wife to penal servitude if you disapprove of their conduct and want to punish them," protested George Bernard Shaw, "but don't send them back to perpetual wedlock.") As love becomes the currency of the institution, judges become more sympathetic to miserable spouses--possibly because they, too, know from personal experience just how painful ruined love can become. In 1849, a Connecticut court ruled that spouses should be allowed to legally leave their marriages not only for reasons of abuse, neglect, or adultery, but also because of simple unhappiness. "Any such conduct as permanently destroys the happiness of the petitioner," the judge declared, "defeats the purpose of the marriage relation."
This was a truly radical statement. To infer that the purpose of marriage is to create a state of happiness had never before been an assumption in human history. This notion led, inevitably you could say, to the rise of something the matrimonial researcher Barbara Whitehead has called "expressive divorces"--cases of people leaving their marriages merely because their love has died. In such cases, nothing else is wrong with the relationship. Nobody has beaten or betrayed anyone, but the feeling of the love story has changed and divorce becomes the expression of that most intimate disappointment.