I made the mistake of teaching a set of essays on gay marriage at the end of the semester. I call it a “mistake” because I find it very difficult to give my traditional charitable interpretation to the work of folks like John Finnis and Robert George, who make arguments from a definition of marriage as “one-flesh two-body union” that they claim must exclude homosexuals but include infertile heterosexual couples. Yet they resist the objections that this is a) a narrow doctrinal definition or b) a definition that draws norms from crude anatomy or c) a definition that falls for some other version of the naturalistic fallacy. After reading widely on the subject, I still can’t accept that a rational person would deny that this “one flesh union” definition is all three: only bad faith or completely incommensurable languages seem to justify our disagreements. You might as well just say, “Marriage is Magic.”
This is why I believe that the legal situation in most of the US that tries to restrict marriage to heterosexual couples, including the so-called “Defense of Marriage Act” which abrogates the part of the US Constitution requiring that state grant “full faith and credit” to “acts, records, and proceedings,” is unjust. But when we make this case, we are confronted with the force of cultural and linguistic traditions that restrict certain performative utterances to certain speakers. Most speakers cannot meaningfully utter statements like “I dub this ship ‘The Sylvan Nymph,'” or “I now pronounce you a citizen of Aztlan.” Similarly, if I offered you a knighthood you’d be right to scoff. When we advance arguments in favor of gay marriage, some people deride these arguments as simple violations of convention.
The thing is, they’re not entirely wrong. Conventions bind us. My wife and I tried to get engaged for months, but none of our conversations or decisions seemed to stick. She asked. I asked. We said yes. She gave me a plastic decoder ring out of a crackerjack box. We discussed what a great idea it was. We planned details. We speculated about dates. We digressed. We sent each other links to dresses and suits and honeymoon spots. But for some reason we still weren’t engaged.
Then one day I went ring shopping. This process took months because I refused to buy a natural diamond… but I had become convinced that it had to be a diamond or else the ritual wouldn’t work. It was an ordeal, let me tell you, and I think it had to be! When the ring finally arrived, we went for a walk in front of Nashville’s Parthenon. I knelt to tie my shoes, told her I loved her, and pulled the ring from my pocket. Suddenly we were engaged! We called everyone we knew, and declared it. It was settled: we were going to spend the rest of our lives together. That’s magic.
I call it “magic” to show how hard it is to resist cultural norms, especially in ways that have cross-cultural force, like the engagement process. When an Irish atheist (me) and an Italian lapsed-Catholic (her) try to get married, they’ve got to communicate that to themselves and to each other’s families using some pretty broad semaphore. And why shouldn’t we use “sorcery” to describe this kind of signalling, if the traditional model of autonomous contract captures barely a sliver of the phenomenon? A sufficiently communal socio-cultural ritual is indistinguishable from magic: like a magic spell, it makes things happen in ways and for reasons that none of its participants can really understand.