Since a bill is now working through Congress to codify same-sex “marriage”, I would like to analyse the rhetoric of the revived controversy and make some points on the rhetoric of the same.
A lot of the arguments now are focused on “what marriage is” and definitional arguments over “marriage”. For myself while I have been on a “stick to the text” rant of late, I have very little interest in definitional arguments. Most of my analysis are of the form, “No, that’s not what the text says nor is that what the text refers to, you may want or intend it to mean this, but that’s not what it says or refers to.” However the arguments we are facing at the moment is not to determine what the word really refers to, it is precisely an intentional willfulness to change the referent of the word. They aren’t saying, “This is what marriage really means, etc.” They are saying, “We are *now* using the word “marriage” to refer to this instead, and we want all legal facilities which used to belong to the older referent of “marriage” to now apply to our new referent.”
Obviously, throughout history, words do undergo referent change. How many people still remember that “bigot” used to merely refer to someone who was obstinate about their beliefs, “unreasonably so”, not someone who was a -phobe or -ist? It is notable that David Hume himself dismissed a fellow Scot philosopher as that “silly bigoted fellow” for being obstinate against Hume’s arguments for the racial inferiority of blaqs. As such, I have very little interest in definitional arguments. If you want to use the word to refer to what you want, you can *have* the word. I am more interested in the object referred to by the word than the word itself.
I would go further than this. Our rhetoric assumes that God ordained this thing called “marriage”, and then we’re figuring out what goes into this institution, as if marriage were the controlling central concept for its features. But what does Genesis 1-3 say? Where does the word “marriage” appear there? Ironically, nowhere!
God did not ordain this institution “marriage” and then filled it up with features and elements, the word “marriage” would only appear much further down in Genesis, and it is not even the object of statutory definition or explication by commandment. What God ordained was roles for male and female. He commanded that a *man* should therefore leave his parents and be joined with a women, and they shall be one flesh. Thus, marriage is a *subset* of sexual/gender roles, and effect of being created a biological sex, it is not the controlling concept whereby we slot gender/sexual roles into it. In the 1662 Book of Common Prayer the marriage liturgy has the priest say, “I pronounce that they be ***man*** and wife together”, not “husband” and wife, marriage *flows* from the God ordained gender/sex, by virtue of being a man and woman, it is not the foundational concept which gender is the moving part. (I think the word “marriage” in Hebrew is actually defined in terms of relationships and roles, becoming a son-in-law or daughter-in-law, it is not defined as a state in itself, but I will need to look this up.)
Once we re-orient our conception of marriage, and focus on what is “behind” the concept and foundational to it, we can avoid a lot of pointless arguments over the “word”. God ordained Man and Woman to have specific sexual roles, one of which is to be joined in flesh with the other. Thus, with this understanding, we can turn to how the law functions to support this God ordained role for man and woman.
If the one fleshness of two sexes is the core component of “marriage”, this component will remain regardless of whether the word “marriage” is given up for whatever perversions the alphabet soup mafia wants. The question is what is the role of the law in supporting this one fleshness? The obvious answer here would be obviously to deter adultery and to hold couples to the duties which flow from consummation. Those are its essential points and the proper referent of all laws concerning “marriage”. This is why in common law jurisdictions the definition of consummation and adultery has always been physically explicit, penetration is penetration is penetration is penetration with penises and vaginas. It is hilarious, as a side note, that when David Cameron was legislating same-sex Marriage in England, he faced a difficulty in that his definition of marriage had no concept of adultery and consummation for obvious reasons. Of course, if you remove the policing of adultery and consummation, what you are left with is simply a state registered friendship, friends with benefits literally. But the essential core of marriage, the one fleshness, has simply ceased to be policed and supported by the state. All other legal effects of “marriage” in law, tax benefits, joint accounts, visitation rights, etc, etc, are ancillary to what God has ordained.
As such, it is arguable that once the state stopped policing adultery in marriage, it has effectively ceased to support the essence of marriage. All other constellations features around marriage simply become friends with benefits without this core.
Once we grasp this point then we can re-focus our political and legal battles. If the alphabet soup wants the word “marriage”, they can have it. The states can even simply abolish the entire legal concept of “marriage” from their laws and statute books and re-focus their legal efforts. I’ve before sketched an outline where it is simple enough to create a tort liability for violating “expectations of sexual exclusivity” by coitus with a different person whom one has sexual relations created by consummation, so this liability is created upon consummation which can be defined by coitus. We have thus encoded consummation and adultery into law without using the word “marriage”, and we have its essence without arguing about words. And the beauty of this scheme is that since the legal liabilities and duties expressly and directly refer to explicit physical organs and acts, there’s no way to, literally, slot homosex into these categories or organs.
As such, we need to go back to basics, back to the Bible and the category its uses, back to Genesis and creation itself. Even our Saviour himself, in his critique against the Pharisees, did harken back to what God ordained in the beginning. We need to sweep away all the accretions on marriage accumulated over the centuries and to the divine law itself.