A Damaged and Disorienting Portrait

In May 1914, a feminist entered the Royal Academy in London carrying a concealed meat cleaver to attack John Singer Sargent’s portrait of novelist Henry James. “I have tried,” the woman explained, “to destroy a valuable picture because I wish to show the public that they have no security for their property nor their art treasures until women are given political freedom.” Skilled restorationists were able to repair Sargent’s painting. But legal scholar William C. Duncan fears that the ideologues now swinging their ideological meat cleavers at “a vastly different kind of portrait” are causing cultural harm less easily repaired. In particular, Duncan fears that activists now agitating for state recognition of same-sex “marriage” are seriously damaging a critically important social institution.

“If our legal portrait of marriage is damaged through oversimplification or by removing key aspects of its nature,” Duncan warns, “it is doubtful that it can be restored as easily as a painting.” The oversimplification of marriage that disturbs Duncan is that which removes from its definition any acknowledgment of procreative sexual differences or of the abiding obligations to children born of those sexual differences. When legal theorists or jurists leave these procreative sexual differences out of their new and de novo definitions of marriage, “the omission is glaring,” Duncan asserts, “because procreation and child-rearing have been central to the meaning of marriage and the justifications for the state’s recognition of it.”

Duncan thus recognizes the wisdom in Roger Scruton’s understanding of marriage: “Marriage has grown around the idea of sexual difference and all that sexual difference means. To make this feature accidental rather than essential is to change marriage beyond recognition. . . . By admitting same-sex marriage we deprive marriage of its social meaning, as the blessing conferred by the living on the unborn.” Because he values the conferral of this blessing upon the unborn, Duncan ratifies the logic of New York’s appellate court when it reaffirmed the right of the legislature to maintain a traditional definition of marriage as a heterosexual institution. Such a legal definition of wedlock, the New York court reasoned, “encourage[s] opposite sex couples to marry, thereby assuming legal and financial obligations [for] the children born from such relationships . . . [fostering] better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children.”

Also congenial to Duncan’s perspective is the social logic of a commission created by the National Assembly of France to consider proposals for authorizing same-sex marriage. This commission found it impossible to recognize same-sex marriage while keeping “the best interest of the child the central factor in family law.” “It is not possible,” the French legal analysts concluded, “to think of marriage separately from filiation: the two questions are closely connected, in that marriage is organized around the child.”

Duncan lauds the “social understanding” that inheres in the legal endorsement of traditional marriage, and he cherishes “the goods it promotes.” But he discerns in current activism the emergence of “an adult-centered view of marriage” that can only mean that the older and beneficent social understanding is now “in danger of being lost.” A society that legalizes same-sex marriage not only pushes children out of its marital calculus, but it also mobilizes “law’s ample power on behalf of the view that sexual behavior and family structure are morally neutral matters.”

C. S. Lewis—Duncan reminds his readers—used the fictional canvas of That Hideous Strength to depict the malign consequences of “the use of distorted artwork to disorient individuals.” “Is it fair to ask,” Duncan wonders, “whether a distorted portrait of marriage will create social disorientation and impinge on the ability of the institution to continue the work it has done to this point?” His analysis having answered his rhetorical question all too clearly, Duncan sounds an urgent note: “Perhaps by seeing what is being done to the picture of marriage we have inherited from our ancestors, we can summon the will to resist. If we are to preserve the good in what has been left to us, we can hardly act too soon.”

(William C. Duncan, “Portrait of an Institution: How Recent Cases Distort Our Understanding of Marriage,” Howard Law Journal 50 [2006]: 95–112.)