Nicholas Buccola & Justin Dyer - Pro/Con, Should Oregon Law Recognize Same-Sex Marriage?


In 2004, Oregon voters enacted Measure 36, which amended the state’s constitution to define marriage as a union of one man and one woman. As soon as 2014, Oregon voters may have an opportunity to reconsider this issue. When the time comes, Oregon voters should overturn Measure 36 and recognize the rights of same-sex couples to marry.

I think there are important arguments to be made to support same-sex marriage on the grounds of our commitments to liberty, equality and fairness.

But here, I would like to focus on a slightly different idea: something the late political philosopher Judith Shklar called “civic dignity.” Shklar used this term to indicate that part of what it means to be a citizen is to be granted a certain level of respect and recognition. Because the meaning of this term is of no small importance to my argument, I need to explain more about what it means by breaking it into its component parts. By “civic,” I have in mind that which is related to our status as members of a political community. By “dignity,” I have in mind the idea philosopher William A. Parent described as a “distinctively moral status that secures us against arbitrary contempt.”

The question before us then is this: Is the exclusion of gay and lesbian people from the institution of civil marriage an affront to their civic dignity? In order to answer this question, we must determine the meaning of marriage as a civic institution and whether the recognition of same-sex marriage would undermine or strengthen that civic meaning.

In our pluralist society, marriage means many different things to different people. For some, marriage has a deeply religious meaning. For others, the meaning of marriage is bound up with procreation, economics or family life. In this sea of myriad meanings, we must return our focus to this central question: What is the civic meaning of marriage? In other words, why, as a political community, do we choose to respect some unions as marriages and others as something else or nothing at all?

I think Massachusetts Supreme Court Justice Margaret H. Marshall captured the essence of the civic meaning of marriage when she said it is “a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity and family.” While we may come from different religious or philosophical foundations, most of us can agree that we choose to recognize marriage as a valuable civil institution because we share commitments to these ideals.

Can gays and lesbians pursue the ideals of mutuality, companionship, intimacy, fidelity and family?

For those of us who have had the opportunity to witness committed gay and lesbian couples flourishing around us, our answer is a resounding Yes.

If Marshall is right to say that our commitment to these ideals is at the heart of the public recognition of marriage, then it is an affront to the civic dignity of gays and lesbians to deny them access to the institution. According to Shklar, the “struggle for citizenship in America has … been overwhelmingly a demand for inclusion” and “an effort to break down existing barriers to recognition.”

When the time comes, I hope my fellow Oregonians will join me in recognizing the civic dignity of gays and lesbians by removing the barrier of Measure 36.

Nicholas Buccola is assistant professor of political science at Linfield College. His book, “The Political Thought of Frederick Douglass,” was published by New York University Press earlier this year.


Marriage is on the fritz in America today, but the truth is it hasn’t been working well for a long time. According to widely cited government statistics, just under half of first marriages end in divorce, and more Americans are choosing to forego marriage in favor of cohabitation or other living arrangements.

In light of these trends, Slate magazine recently published an article that asked 10 experts how they would fix the institution of marriage. A political scientist advocated getting rid of the legal expectation of permanence by turning marriage into a five-year renewable contract, while an economist suggested divorcing marriage and parental rights. One journalist wanted to go further, divorcing marriage not just from parental rights but from romantic love and sexual fidelity altogether. Her solution was to allow everyone to have a legal “point person” irrespective of sexual relationship or orientation. For another journalist, however, even the “point-person” idea of marriage was too constraining. Why not create a legal institution that would recognize different types of relationships—including polyamorous and polygamous — in addition to traditional pairings?

Each of these proposals illustrates our culture’s increasing ambivalence about, and even hostility to, the core marital norms of permanency, sexual exclusivity and monogamy.

Why the ambivalence? I think part of the reason is that we have lost sight of why these norms developed in the first place. Marriage is, of course, a dynamic institution. But its core public purpose is to sustain the human community by uniting sex, child rearing and parenthood. Without adequate social and legal support to unify these three societal “goods,” they easily fragment. The core norms underpinning marriage are designed to connect mothers and fathers to their children and to each other.

When the force of these norms diminishes, more children are raised in broken or fatherless homes. According to the most recent census data, 24 million American children (and two out of three low-income children) do not live with their biological fathers. As the introduction to President Obama’s “Fatherhood Pledge” (www.fatherhood.gov/pledge) acknowledges, “When Dads aren’t around, young people are more likely to drop out of school, use drugs, be involved in the criminal justice system, and become parents themselves.”

Of course, the norms underpinning marriage started to weaken long before we began a national discussion about whether justice requires extending marriage to same-sex couples. Along these lines, I think the strongest case that can be made in favor of same-sex marriage is that it will reinvigorate our marriage culture and create stability for children already being raised in homes headed by two parents of the same sex.

What worries me, however, is that the logic of “marriage equality” for same-sex couples will further cut against the idea that Moms and Dads are unique or uniquely important, and it will clear the ground for more radical marriage reform proposals (see above) that further dissociate sex, childrearing and parenthood.

Nothing about defending and strengthening the traditional view of marriage prevents us from protecting the legal rights of same-sex couples or creating legal benefits that respond to the needs of same-sex families. It does, however, at least retain in our law and culture the idea of marriage as a permanent, exclusive, sexual union of a man and a woman, which is explicable and rational in light of marriage’s traditional public purpose of uniting a set of social goods that often fracture with a high cost to children and to society.

Justin Dyer is assistant professor of political science at the University of Missouri and the author of “Natural Law and the Antislavery Constitutional Tradition.” He recently debated the sa me-sex marriage question at Linfield College.

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