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Defining and Protecting Marriage


So President Bush has announced support for an amendment to the U.S. Constitution to “define and protect” the institution of marriage by requiring that, at least in official usage, the word apply only to “a union between a man and a woman.” This move, while predictable, strikes me as unusual in being at once so petty and so malicious.

Last November, when the Massachusetts Supreme Judicial Court justice ruled in favor of gay marriage, Justice Martha Sossman, in her dissenting opinion, called the argument over marriage versus same-sex civil unions merely “a squabble over the names to be used.” She quoted the famous line from Shakespeare’s “Romeo and Juliet:” “What’s in a name? That which we call a rose, by any other name would smell as sweet.” But fellow justices argued that separate is seldom equal, and gays argued that civil unions (as recognized in Vermont) do not provide gay couples with all the same rights as married heterosexuals.

Still, it’s at least conceivable that partners in “civil unions” could be accorded all such rights, and I imagine that some dead-set against the rose of “gay marriage,” and holding their noses while tolerating the notion of civil unions, might want to sweeten up the latter simply to preserve the sanctity, less of an institution, than of a word. This magic word, this fetished word: marriage.

The Guardians of the Word might not care so much if Bill and Joe just shacked up unobtrusively and did wicked stuff in their bedroom. But they can’t abide the idea that some day soon straight parents might be telling their kids, “Wow. That was Uncle Joe on the phone. He and Bill have decided to get married!” with the same pleasure and matter of factness they might express should Joe have married Jane. They can’t bear to imagine a near future in which little Sandy tells her friends she has to miss soccer practice Sunday because she’s a bridesmaid at Peggy and Wendy’s marriage ceremony. Use of the term itself would suggest to kids that all this is okay, and normal, indeed a happy thing.

Now, quite possibly, whatever the fate of the proposed constitutional amendment, “marriage” in connection with same-sex unions will enter into common parlance, anyway. Popular speech can’t really be regulated, not at least until we become way more fascist. The word, that is to say, is ultimately unprotectable, and even if Bill and Joe are just shacking up their friends might refer to them as “married.” But how does Bush suppose that mere legal definition will protect heterosexual unions anyway? From whom and what? I imagine he’s thinking that if society indeed comes to regard same-sex marriage as a valid institution, it will encourage more people to experience homosexual desire and engage in homosexual activity than would otherwise be the case. (This all in accordance with a supposedly militant “homosexual agenda” whose advocates possess frightening potential, explicable largely by their receipt of Satan’s support, to seduce straight people into their sinful “lifestyle.”) If the law makes emphatically clear that marriage is not an option for same-sex couples, it will discourage such desire and activity, thereby encouraging the heterosexual alternatives. Thus the state should promote, in self-defense, the “sanctity” of heterosexual marriage. (One doubts, though, that the religious term “sanctity” would be used in a Constitutional amendment.)

I’ve seen bizarre letters to editors warning of population decline and other foul results of officially recognized gay marriages. I’m inclined to dismiss them as paranoid, but on the other hand, as a student of the history of sexuality, I observe that homosexual behavior seems far more prevalent in some societies than others. In ancient Athens and in seventeenth-century Japan, male bisexuality, openly celebrated in art and literature, may have been the norm. Forms of homosexuality (often very specifically constructed and surrounded, like heterosexual sex, with various taboos) have occurred in all societies, in all eras. This requires no specific explanation; people are, among other things, just good at figuring out what gives their bodies pleasure, and exhausting all the possibilities available.

But stern prohibitions of homosexual behavior, especially if backed up by bloody punishments, may indeed have in some societies reduced not only its social profile but even its private incidence. Today’s opponents of gay marriage may fear that its arrival (and with it, the lifting of the religiously-rooted anti-“sodomy” onus) will somehow encourage people’s libidos and affections to stray into territory they would otherwise avoid. Conversely, its explicit rejection, occurring in the fundamental legal text of the American republic, signals that the onus continues, and those experiencing same-sex attraction should just stifle it (in part to protect themselves). The protection of marriage is thus the protection of the people from their own (socially threatening) feelings, and from the results of tolerance. So while the issue of constitutional definitions, calling roses roses or something else, might seem a trite “squabble” to Justice Sossman, it’s really quite serious.

And absurd. Let us say the state does, in fact, pontificate that “marriage is the union of a man and a woman.” That’s imprecise, inviting many questions. What is a “union”? We unite with all kinds of people in all kinds of situations that have nothing to do with marriage. Does the union have to be sexual? Traditional religious definitions of marriage, and religious arguments for its dissolution, have emphasized its procreative function. But few would exclude from the heterosexual marriage category unions contracted between infertile or post-menopausal women and male partners. Or between infertile men and nubile women. And what is a “man,” for that matter? Shouldn’t the Constitution define him, too, in terms of ejaculate quantity and quality, armpit hairs or emotional maturity (which requires further definition)? When does a girl become a woman? Puberty is a process, not an instantaneous event. And what about the one percent born hermaphrodites or pseudo-hermaphrodites? Are they men, women, or both, and if they haven’t undergone operations to clarify this issue, what are their marital rights? If we’re talking law, and require definitions provided up till now by evolving common sense, we need precision, detail.

The above formulation really means this:

Marriage, as recognized and promoted by the state, is the contracted and legally registered union between two adults, as defined specifically in terms of ages and biological features by state legislatures, ideally but not necessarily involving cohabitation, sexual intercourse, and child-rearing, subject to dissolution through established legal processes and involving all rights and responsibilities established by law to date, and involving one man and one woman.

We could add, although it wouldn’t be good legalese (not that the above is):

and not involving, lest it was ever unclear, or should be thought an issue for state legislatures to determine, same-sex unions, including cohabitive, sexual, child-rearing ones, from which the Homeland must protect man-woman unions.

Changing the subject: recall that Bush attacked Iraq in order to “protect” America, although anyone with a brain now knows the threat was contrived. (Question for discussion: is the threat to America from same-sex marriages similarly invented?) Bush defines the Iraqi battlefield (where the U.S. occupation produces mounting and understandable anger throughout the Muslim world, and the world in general, because–defining it precisely–it’s an instance of imperialist aggression and clear violation of international law), as the central battlefield in his “War on Terrorism,” itself a hopelessly ill-defined phenomenon rooted in simplistic, religious-fundamentalist thinking. Skeptics of the Iraqi WMD threat used to hoodwink the U.S. public prior to the war? “Revisionist historians I like to call ’em,” defines Bush (New Jersey, June 16, 2003).

Oh, and before I end, a few more Bushite definitions, just for reference. Africa? “Africa is a nation that suffers from incredible disease” (Gothenburg, Sweden, June 14, 2001). Natural gas? It “is hemispheric. I like to call it hemispheric in nature because it is a product that we can find in our neighborhoods” (Austin, Texas, Dec. 20, 2000). Astronauts? “Courageous spacial entrepreneurs who set such a wonderful example for the young of our country.” (Washington, D.C., Jan. 14, 2004). My conclusion: Bush’s definitions don’t make any sense. And his efforts to “protect” us in fact assault our security, well-being, and intelligence–and all kinds of marriages.

GARY LEUPP is Professor of History at Tufts University, and Adjunct Professor of Comparative Religion. He is the author of Servants, Shophands and Laborers in in the Cities of Tokugawa, Japan; Male Colors: The Construction of Homosexuality in Tokugawa, Japan; and Interracial Intimacy in Japan: Western Men and Japanese Women, 1543-1900.

He can be reached at:



Gary Leupp is Professor of History at Tufts University, and holds a secondary appointment in the Department of Religion. He is the author of Servants, Shophands and Laborers in in the Cities of Tokugawa JapanMale Colors: The Construction of Homosexuality in Tokugawa Japan; and Interracial Intimacy in Japan: Western Men and Japanese Women, 1543-1900. He is a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He can be reached at:

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