Revisionists today miss this central question - what is marriage? - most obviously when they equate traditional marriage laws with laws banning interracial marriage. They argue that people cannot control their sexual orientation any more than No. 1] What is Marriage? 249 they can control the color of their skin.6 In both cases, they argue, there is no rational basis for treating relationships differently, because the freedom to marry the person one loves is a fundamental right.7 The state discriminates against homosexuals by interfering with this basic right, thus denying them the equal protection of the laws.8
But the analogy fails: antimiscegenation was about whom to allow to marry, not what marriage was essentially about; and sex, unlike race, is rationally relevant to the latter question. Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law's reliance on genuinely relevant distinctions.
Opponents of interracial marriage typically did not deny that marriage (understood as a union consummated by conjugal acts) between a black and a white was possible any more than proponents of segregated public facilities argued that some feature of the whites-only water fountains made it impossible for blacks to drink from them. The whole point of antimiscegenation laws in the United States was to prevent the genuine possibility of interracial marriage from being realized or recognized, in order to maintain the gravely unjust system of white supremacy.9
By contrast, the current debate is precisely over whether it is possible for the kind of union that has marriage's essential features to exist between two people of the same sex. Revisionists do not propose leaving intact the historic definition of marriage and simply expanding the pool of people eligible to marry. Their goal is to abolish the conjugal conception of marriage in our law10 and replace it with the revisionist conception.
More decisively, though, the analogy to antimiscegenation fails because it relies on the false assumption that any distinction is unjust discrimination. But suppose that the legal incidents of marriage were made available to same-sex as well as opposite-sex couples. We would still, by the revisionists' logic, be discriminating against those seeking open, temporary, polygynous, polyandrous, polyamorous, incestuous, or bestial unions. After all, people can find themselves experiencing sexual and romantic desire for multiple partners (concurrent or serial), or closely blood-related partners, or nonhuman partners. They are (presumably) free not to act on these sexual desires, but this is true also of people attracted to persons of the same sex.
Many revisionists point out that there are important differences between these cases and same-sex unions. Incest, for example, can produce children with health problems and may involve child abuse. But then, assuming for the moment that the state's interest in avoiding such bad outcomes trumps what revisionists tend to describe as a fundamental right, why not allow incestuous marriages between adult infertile or same-sex couples? Revisionists might answer that people should be free to enter such relationships, and all or some of the others listed, but that these do not merit legal recognition. Why? Because, the revisionist will be forced to admit, marriage as such just cannot take these forms, or can do so only immorally. Recognizing them would be, variously, confused or immoral.
Revisionists who arrive at this conclusion must accept at least three principles.
First, marriage is not a legal construct with totally malleable contours - not "just a contract." Otherwise, how could the law get marriage wrong? Rather, some sexual relationships are instances of a distinctive kind of relationship - call it real marriage - that has its own value and structure, whether the state recognizes it or not, and is not changed by laws based on a false conception of it. Like the relationship between parents and their children, or between the parties to an ordinary promise, real marriages are moral realities that create moral privileges and obligations between people, independently of legal enforcement.11
Thus, when some states forbade interracial marriage, they either attempted to keep people from forming real marriages, or denied legal status to those truly marital relationships. Conversely, if the state conferred the same status on a man and his two best friends or on a woman and an inanimate object, it would not thereby make them really married. It would merely give the title and (where possible) the benefits of legal marriages to what are not actually marriages at all.
Second, the state is justified in recognizing only real marriages as marriages. People who cannot enter marriages so understood for, say, psychological reasons are not wronged by the state, even when they did not choose and cannot control the factors that keep them single - which is true, after all, of many people who remain single despite their best efforts to find a mate.
Any legal system that distinguishes marriage from other, nonmarital forms of association, romantic or not, will justly exclude some kinds of union from recognition. So before we can conclude that some marriage policy violates the Equal Protection Clause,12 or any other moral or constitutional principle, we have to determine what marriage actually is and why it should be recognized legally in the first place. That will establish which criteria (like kinship status) are relevant, and which (like race) are irrelevant to a policy that aims to recognize real marriages. So it will establish when, if ever, it is a marriage that is being denied legal recognition, and when it is something else that is being excluded.
As a result, in deciding whether to recognize, say, polyamorous unions, revisionists would not have to figure out first whether the desire for such relationships is natural or unchanging; what the economic effects of not recognizing polyamory would be; whether nonrecognition stigmatizes polyamorous partners and their children; or whether nonrecognition violates their right to the equal protection of the law. With respect to the last question, it is exactly the other way around: Figuring out what marriage is would tell us whether equality requires generally treating polyamorous relationships just as we do monogamous ones - that is, as marriages.
Third, there is no general right to marry the person you love, if this means a right to have any type of relationship that you desire recognized as marriage. There is only a presumptive right not to be prevented from forming a real marriage wherever one is possible. And, again, the state cannot choose or change the essence of real marriage; so in radically reinventing legal marriage, the state would obscure a moral reality.
There is a tension here. Some revisionists say that marriage is merely a social and legal construct, but their appeals to equality undermine this claim. The principle of equality requires treating like cases alike. So the judgment that same-sex and opposite-sex unions are alike with respect to marriage, and should therefore be treated alike by marriage law, presupposes one of two things: Either neither relationship is a real marriage in the above sense, perhaps because there is no such thing, marriage being just a legal fiction (in which case, why not justify apparent inequities by social-utility considerations?13), or both relationships are real marriages, whatever the law says about them. The latter presupposition entails the belief, which most revisionists seem to share with advocates of the conjugal view, that marriage has a nature independent of legal conventions. In this way, the crucial question - the only one that can settle this debate - remains for both sides: What is marriage?
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B. Real Marriage Is...
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