By Monte Neil Stewart

Monte Stewart is the president of the Marriage Law Foundation, a partner of the Family Leader Foundation. Help us defend marriage by joining family leader at www.familyleader.net.

Recently, one of my law clerks shared an experience with me that illustrates a major obstacle facing Latter-day Saints when, in a non-church setting, they try to persuade that marriage should continue to be defined as the union of a man and a woman, not as the union of any two persons. 

The obstacle is that, other than on the basis of their own personal religious convictions, they cannot explain why our society should preserve man/woman marriage rather than adopt what some see as the “more just and equal” notion of any-two-persons marriage (what the media calls “same-sex marriage” or “gay marriage” and what I more accurately call “genderless marriage”). 

My clerk worked as a summer associate for a prominent New York law firm. All summer, he remained silent while his more liberal co-workers espoused their ideas about a litany of hot-button social issues, ranging from abortion to western society’s cultural pollution of the rest of the world. Already an anomaly as the lone BYU student amidst a flood of Harvard and Yale alumni, he preferred to slide under the radar in such instances.

At a firm dinner in early August, however, the topic was the change to genderless marriage and everyone at the table — other summer associates and junior partners alike — thought it was a splendid idea. With barely a week left before returning to law school, he decided to speak up for the first time and interject his views into the conversation. My clerk leaned forward and cleared his throat:

“I actually think that ... um ... gay marriage is problematic.”

In an instant, the table went silent. The second-year associate seated next to him dropped her chunk of crusty bread into the gurgling Swiss cheese fondue. All eyes were on him.

“Well, of course you think that. You’re from BYU. A Mormon ...”

The clerk stammered his way through a vague explanation that, even independent of religious belief, he still didn’t think genderless marriage — legally or philosophically — was a good idea. His coworkers, however, quickly dismissed each argument he offered as the product of his religion which, admittedly, it was. Ultimately, he couldn’t answer the question, “How is Jim and John marrying going to hurt your marriage?”

Ordained of God

The Church of Jesus Christ of Latter-day Saints’ Proclamation on the Family clearly teaches that “marriage between a man and a woman is ordained of God and that the family is central to the Creator's plan for the eternal destiny of His children.” It warns that “disintegration of the family will bring upon individuals, communities, and nations the calamities and nations the calamities foretold by ancient and modern prophets.” As solid in that belief as my clerk was, he could not articulate a concise argument to his co-workers without leaning upon his personal religious beliefs for support.

Truthfully, a significant amount of the opposition to genderless marriage is driven by religious belief — particularly a profound belief in the sanctity of religiously-ordained marriage between a man and a woman. But just as religious conviction is unpersuasive to a table of skeptical New York lawyers, it is also unpersuasive — indeed, it is off-limits — in the American courtrooms where the marriage debate will likely be decided.

Yet very strong and persuasive arguments arising from non-religious learning also support man/woman marriage. In making clear why society must preserve marriage as the union of a man and a woman, these arguments from non-religious learning are effective in any social or public setting, including the courtroom. (That such arguments exist will please but not surprise Latter-day Saints, who understand that all truth unites in a harmonious whole.)  Perhaps the most compelling of these arguments is the social institutional argument.

Defining a Social Institution

Everyone agrees that marriage is a vital social institution, so the beginning point is to clearly understand what a social institution is. While the term “institution” conjures up images of a foreboding concrete building, or maybe the place where people are sent when struggling with psychological challenges, a social institution is not at all like that. A social institution is composed not of concrete or steel or glass but of shared public meanings that form how we act and think about certain objects or arrangements. 

Social institutions are all around us. Money, for example, is a social institution. So long as everyone believes that the twenty dollar bill in my wallet is worth something, it is. If everyone suddenly stops believing that, it’s worthless and I couldn’t even use it to buy a pack of gum. That is the very essence of a social institution: it only exists so long as enough people share the meanings that constitute it. 

Another good example is private property. At times in history, people in a particular society, usually through a revolution, stopped accepting the bundle of meanings that make up the social institution of private property. When that happened, private property ceased to exist. Shoes and railroad locomotives and houses continued to exist, but private property didn’t.

But while they exist, social institutions, especially vital ones like marriage, are very powerful. They guide our lives by effectively teaching us and molding us. They shape our understanding of what we should aim for in life, what is acceptable for us to do, and how we should relate to others. Even our own identities within a society are shaped by social institutions. 

The Frequent Use Argument

Frequent use wears out most things. If you wear the same shirt day after day, it becomes faded and hole-ridden. A car’s tires go bald and the engine eventually begins to fail.  But frequent use actually renews and strengthens social institutions. The more often a social institution is used, the more ingrained and permanent it becomes. But just as a social institution can be reinforced, it can also be entirely torn down if members of the community stop recognizing or sharing its core meanings. Government, as one would expect, plays a big part in sustaining these institutions — or destroying them, if that’s what it wants to do.

An example of government’s power to destroy a vital social institution comes from the former-Soviet Union in the past century. But I need to start first with America. Private property is an important part of American life. I own my car — bald tires, failing engine, and all. If someone tries taking it, I can stop them because we have a clearly defined social institution of private property that the government fully supports.

It used to be the same way in Russia. In 1917, however, the Bolshevik party led a revolution establishing a new socialist republic, constitutionally proclaiming that all property belongs to “the entire people.” The government, through the constitutional law, effectively destroyed the social institution of private property and transformed the concept of what property means for generations to come. As an example, I relate the experience of Barbara Lockhart, a speed skater on the U.S. Olympic Team during the 1960 Winter Olympics and now a professor of exercise science at BYU.

In 1960s, the Soviet speed skaters were the best in the world, and Barbara, then just eighteen years old, taught herself Russian and looked forward to becoming acquainted with them. She succeeded. Klara Guseva, who won the gold medal in the 1,000 meter race, and Barbara spent a fair amount of time together at Squaw Valley and became friends. Near the end of the Games, Barbara and two American teammates were visiting in their Olympic Village dorm room. Klara entered, removed the slippers she was wearing, and began trying on the American athletes’ shoes. She seemed particularly pleased with a pair of brown loafers. With the loafers on her feet, Klara walked out. The Americans watched dumbfounded. Klara kept the shoes for her own use, and the flummoxed Americans never could bring themselves to seek the shoes’ return.

Clearly, Barbara and Klara had radically different relationships to and understandings of the same pair of brown loafers.  Barbara was shaped by her society’s strong social institution of private property, an institution reinforced by American constitutional law. In contrast, Klara’s society had no equivalent private property institution but rather another institution — supported by the Soviet government — that shaped individuals in relation to property in a very different way.

Barbara understood herself to be an “owner” relative to some objects and “not an owner” relative to other objects.  Since her early childhood, the social institution of private property instilled in her such basic understandings and identities. Likewise, the Soviet property institution formed Klara’s identities and hence her conducts. Barbara’s “property ways” were incomprehensible to Klara and to Klara’s parents — but not to her grandparents, for they would have been taught and formed by an effective social institution of private property that pre-dated the communist regime.

Marriage as a Social Institution

Marriage between a man and a woman is a well established social institution. It has been for a long, long time — if it wore out with use the way the shirt discussed earlier does, only a few lonely fibers would be left by now. Indeed, marriage is ingrained in society — though it bears mention that so too was the institution of private property in pre-communism Russia. As a vital social institution, man/woman marriage also plays a powerful and usually indispensable role in producing a variety of social goods that society wants to encourage. These are all social goods that prove valuable, independent of one’s religious belief, but they all depend on the marriage institution having as a core meaning the union of a man and a woman.

• Man/Woman marriage protects a child’s right to know and be brought up by his or her biological parents. Granted, events sometimes happen to make the attainment of this right not possible; sometimes the best interests of the child may dictate that the child be reared by someone other than the biological parents. But overall, it is the institution of man/woman marriage that makes meaningful a child’s birthright to be connected to his or her mother and father, the two people who gave the child life and whose very identities, if known, help the child come to understand who he or she is.

• Man/Woman marriage is the most effective means developed so far to maximize the level of private welfare provided to the children conceived by passionate, heterosexual coupling. It’s an essential reality that such coupling produces children, and contrary to popular myth our “contraceptive culture” has not made that reality small or insignificant; contraceptive failure rates are simply too large for that myth to be true. Society’s interest relative to heterosexual couplings’ procreative power is in making sure that the resulting child is taken care of by getting what is called adequate private welfare, which is not just physical necessities like food, clothing, and shelter but opportunities such as education, play, work, and discipline and intangibles such as love, respect, and security. It is not man/woman passion that provides adequate private welfare (that passion cuts against it); it is the social institution of man/woman marriage that best provides adequate private welfare and does so not only in the interests of the mother and child, but in the interest of society as well.

• Man/woman marriage is the irreplaceable foundation of the child-rearing mode that correlates with the optimal outcomes deemed crucial for a child’s — and hence society’s — well being. Specifically, married mother/father child-rearing has the best outcomes with respect to physical, mental, and emotional health and development, higher academic performance, and avoidance of crime and other forms of destructive behavior such as drug abuse and high-risk sexual conduct.

• Man/woman marriage is the only institution that can confer the status of husband and wife, transforming a male into a husband or a female into a wife (a social identity quite different from “partner”).  This transformation thus enables a transformation of males into husband/fathers (a category of males particularly beneficial to society) and females into wife/mothers (likewise a socially beneficial category).

• Legally recognized and privileged man/woman marriage constitutes both social and official endorsement of that form of adult intimacy — married heterosexual intercourse — that society may rationally value above all other such forms. This rationality has been well demonstrated and never refuted.

A Different Union

A social institution defined at its core as the union of any two individuals, regardless of gender, is unmistakably different from man/woman marriage. Such an institution may include the word “marriage,” just as the communists referred to “property,” but the change is radical, effectively erasing all the social goods I’ve just explained. Genderless marriage proponents speculate that the institution may produce other social goods, but the social goods produced by man/woman marriage will certainly be lost. 

Advocates of genderless marriage will argue that permitting same-sex couples to wed does nothing to erode the core of man/woman marriage. Unfortunately, that simply is not true. Society can sustain one and only one marriage institution.

Society cannot simultaneously tell people — especially children — that marriage, in its core meaning, is the union of any two persons and that marriage, in its core meaning, is the union of a man and a woman. Given the role of language and meaning in defining and sustaining institutions, two “coexisting” social institutions known society-wide as marriage amount to a factual impossibility. Once the law has taken a stand that the core meaning is the union of any two persons, the law will then be unrelenting in enforcing that decision. Meridian recently excerpted a talk by Scott Fitzgibbons that shows this unrelenting force already at work in Massachusetts. http://www.meridianmagazine.com/ideas/051019Massachusetts.html

Changing the Law

It is impossible for same-sex couples to enter the institution of marriage as it has existed up until now. The very act of legal redefinition will radically transform the old institution, turning it into a profoundly different institution whose meanings, value, and vitality are speculative. The meanings that have been cemented through centuries of use and reinforcement will, by force of law, be eliminated and new meanings, of still unknown value, will begin to form. Some same-sex couples look to the law to let them into the privileged institution, and the law may want to, but it cannot; it can only give them access to a different institution of different value.

The redefinition of marriage will also impact those couples who have already entered into the social institution of marriage as it has been defined until now. Redefinition and no act of their own removes them from the institution they voluntarily entered (man/woman marriage) into a markedly different one. To the extent that institutions are constituted by social meaning, and to the extent that the law dictates the social meaning of civil marriage, to redefine marriage as the union of any two persons is not to pull gay men and lesbians into marriage as our societies now know it but to pull married man/woman couples into a whole new institution. Rather than two separate institutions — man/woman marriage and genderless marriage — coexisting under the singular umbrella of “marriage,” a single, new institution of “genderless marriage” is created.

A husband and wife that joined together and entered into the institution of marriage a decade ago will find themselves unexpectedly joined in a dramatically different institution as they approach their tenth anniversary. The institution might still be called “marriage,” but the only similarity will be the external façade. Pastor Gordon Young, a man untrained in the law but keen to the danger posed by this redefinition, recently articulated a useful metaphor while defending man/woman marriage in a Canadian court case: If you have an orange and an apple side-by-side and scoop out the inside of the orange and replace it with the apple, you will end up with something that looks like an orange on the outside, but in fact its fundamental essence will have been changed.

Of course, all of this discussion — operating on macro levels — might be unpersuasive to the genderless marriage advocates who ask: “How is Jim and John marrying going to hurt your marriage?” In many cases, this question proves effective in “winning” the debate. After all, not many lay people are prepared to respond by saying, “Well, if Jim and John marry, that means that our society will have changed a core constitutive meaning of the vital social institution of marriage from the union of a man and a woman to the union of any two persons. 

With that radical change, the old institution will disappear and therefore, necessarily, its invaluable social goods will disappear as well. Those social goods have meant a great deal to my forebears and their society and to me and my society, and I want my posterity to have those social goods down through their generations, because I don’t think they can have a good society without them.”

The honest truth is that if just Jim and John say they are “married,” that won’t affect anything. It won’t affect my marriage. A social institution such as marriage can withstand a few people, even many, playing games with the core meanings that make up the institution.  If ten, twenty, or even a few hundred or few thousand people were to suddenly decide that the twenty dollar bill in my wallet is valueless, that wouldn’t affect its value.

It’s different, however, if everyone suddenly says that, or — more significantly — if government does so. It’s a massive error to focus on the micro-level when it is a large and well established social institution that is being endangered. Remember, the proposed change is not to “just” allow same-sex couples to get marriage licenses and have socially approved weddings. Rather, the proposed change is to have government replace the core of the orange with an apple and then make everybody buy it. A few drops of rain, or even a big storm, won’t tip over a large ocean liner, but a tsunami will.

Rooted in Truth

Opposition to genderless marriage is rooted in truth and not just the truth found in religious wisdom and understandings regarding the human condition. As demonstrated by the social institution argument, a variety of invaluable social goods are endangered by the proposed redefinition of marriage. One of the challenges that proponents of man/woman marriage must deal with effectively when the marriage debate arises is the other side’s penchant to limiting the discussion to the personal, micro level and the “how can what this couple does affect you” argument.

As the social institution argument makes clear, the proposed redefinition will not “expand” an existing and important institution, but rather will destroy it altogether and put in its place an entirely different institution, complete with different meanings, purposes, and values. For those of us who are already participants in the original institution and want its blessings (social goods) for our posterity, regardless of religious belief, that’s a pretty big deal.

Monte Neil Stewart defends man/woman marriage in the courts through Marriage Law Foundation, a charitable, non-profit public interest law firm where he serves as president.  In the past, he has served as a BYU law professor, United States Attorney, and law clerk to the Chief Justice of the United States Supreme Court. Those wanting a more detailed treatment of this subject may want to read Bro. Stewart’s “Genderless Marriage, Institutional Realities, and Judicial Elision,” soon to be available at www.manwomanmarriage.org,  and other articles by him already available at that site.