Comparative Analysis of Same-Sex Marriage Perspectives: Nussbaum vs. Wilson
Martha Nussbaum: A Framework of Equality and Civil Rights
In her article, ‐A Right to Marry? Same-sex Marriage and Constitutional Law,‐ Martha Nussbaum presents a defense of same-sex marriage centered on equality and the definition of marriage as a fundamental right necessary for the ‐pursuit of happiness.‐
The Three Aspects of Marriage: Nussbaum identifies marriage as a multifaceted institution that operates in three distinct realms of American life: * Civil Aspect: This involves the government-provided benefits, including tax considerations and insurance coverage. * Expressive Aspect: This is defined as a public statement of love and commitment. * Religious Aspect: This entails the solemnization of the union by religious authorities.
The Myth of the Golden Age: Nussbaum refutes the conservative narrative that marriage was once a stable and ‐pure‐ institution currently undergoing a unique decline. * She points out that instability, characterized by divorce, mobility, and marital discord, has been a constant feature throughout history. * Specific historical examples cited include ancient Rome and -century America.
The Analogy to Anti-Miscegenation Laws: Nussbaum draws a parallel between the current opposition to same-sex marriage and historical bans on interracial marriage. * She cites the landmark Supreme Court case Loving v. Virginia. * She argues that anti-miscegenation laws were rooted in ‐irrational ideas of stigma and contamination.‐ * She posits that modern bans on same-sex marriage are similarly driven by a ‐stigma of disgust‐ rather than any legitimate public interest.
Rebuttal of Traditional Pro-Banning Arguments: * Procreation: Nussbaum argues that the state does not limit marriage to those capable of procreating, as evidenced by the fact that the state grants marriage licenses to the elderly and the sterile. * Religion: She contends that religious disapproval is an insufficient basis for legal prohibition within a pluralistic society.
Constitutional Standing: Nussbaum concludes that the ‐right to marry‐ is a fundamental liberty that includes an inherent ‐equality dimension.‐ * She argues that the state is prohibited from ‐fencing out‐ specific groups of citizens from the status of marriage without a compelling public interest.
James Q. Wilson: A Defense of Tradition and Natural Law
James Q. Wilson, in ‐Against Homosexual Marriage,‐ argues against the legalization of same-sex marriage by focusing on the functional necessity of the traditional family and the appropriate role of the legislature.
Natural Law and Procreation: Wilson’s defense is rooted in Natural Law, viewing marriage as a functional institution. * He asserts that marriage was fundamentally created to sustain child-rearing. * He argues that heterosexual marriage is the sole arrangement that has proven effective for this purpose over a period of ‐several thousand years.‐
The Concept of ‐Domestication‐: Wilson views marriage as a tool for ensuring social stability. * Marriage serves to ‐domesticate‐ individuals. * It creates a predictable environment essential for the survival of infants.
Rejection of the Racial Analogy: Wilson explicitly disagrees with Nussbaum’s comparison to the civil rights movement. * Race Relations: He defines these as being about social integration, such as gaining access to jobs and schools. * Marriage: He defines this as a distinct, sacred union. * He highlights that societies have overwhelmingly expressed a preference for marriage as a heterosexual institution.
The Weakening of Institutions: Wilson expresses concern that authorizing same-sex marriage would be perceived as a ‐parody.‐ * He fears this would further weaken an institution already under stress from high divorce rates and the prevalence of single-parent households.
Legislative vs. Judicial Roles: Wilson offers a critique of judicial activism. * He argues that courts are ‐mishandling‐ the issue by treating marriage as an individual right. * He maintains that same-sex union policy should be a ‐considered expression of the moral convictions of a people‐ determined through the legislature. * He contrasts this with what he terms the ‐reflexive act of judicial rights-conferring.‐