The Passions of Law

Chapter Eight. Making Up Emotional People: The Case of Romantic Love

The most common judicial argument for retaining the bar against samesex marriage is that marriage, by definition, requires one man and one woman. Proponents of same-sex marriage find this definitional argument unsatisfying since it appears to beg the question“Why define marriage this way?” If the answer is that centuries of tradition support restricting marriage to heterosexuals, proponents can point to Loving’s rejection of that same tradition as sufficient reason for preventing two people from marrying .2 If the answer is that homosexuality is deeply immoral, proponents can point out that moral abhorrence is not sufficient justification either for depriving individuals of a fundamental right to marry or for engaging in sex discrimination.3 What is puzzling about definitional arguments against same-sex marriage is that they look so weak. Where is the depth of the conviction that definitional arguments are good reasons coming from? Neither patriotic loyalty to tradition nor deep moral animus toward homosexuality sufficiently explains why opponents find same-sex marriage to be not just a violation of our traditions or deeply immoral but inconceivable as a real marriage. In what follows, I want to suggest an explanation . Both the moral condemnation of homosexuality and the definition Chapter Eight Making Up Emotional People The Case of Romantic Love Cheshire Calhoun But one thing is certain: love was not made in heaven; rather, it was fashioned right here on earth, to meet specific societal needs. James R. Averill1  of marriage as requiring one man and one woman are deeply bound up with the cultural construction of a particular emotion: romantic love.4 Romantic love transforms sexual desire from a primitive, socially disruptive drive into an expression of the relational ideal of perfect unity. Romantic love also transforms the teleology of sex from mere bodily gratification to committed coupledom, parenting, and family life. It is thus romantic love that forges the connection between sexuality and family, marriage, and procreation. That Justice Byron White found “no connection between family, marriage, or procreation on the one hand and homosexual activity on the other”suggests that what he could not find in homosexuals was romantic love.5 This is exactly what I want to suggest. The deep difference between homosexuality and heterosexuality is in part socially constructed by imputing to gays and lesbians a psychology that makes them incapable of romantic love and thus incapable of more than a simulacrum of marriage. In pursuing this thesis, I have a number of aims. First, examining the link between same-sex marriage bars and the cultural construction of romantic love illustrates one interesting way that emotion enters into law: legal reasoning inevitably relies on assumptions about how people are emotionally constituted. The justification of alternative sanctions such as DUI bumper stickers or public apologies depends on the assumption that normal people will suffer shame from such penalties.Deciding what counts as duress or a mitigating passionate impulse requires making assumptions about which threats are sufficiently frightening to the average person that they constitute duress and which passions a normal person cannot be expected to resist absent a cooling-off period.And deciding whether or not to permit victim impact statements requires making assumptions about how juries will be emotionally affected by victim narratives.6 The assumptions that law has made about how people are emotionally constituted have not always been good ones. In Texas, for example, husbands who murdered their unfaithful wives formerly could expect to face manslaughter rather than murder charges.7 Texas law assumed that wifely infidelity was such a deep affront to the honor of husbands that any man with a normal emotional constitution might react with deep and uncontrollable rage. Because legal reasoning can depend heavily on assumptions about how people are emotionally constituted, it is important for the law to be reflective about just what it is assuming about people’s emotional lives and whether those assumptions are warranted. Doing so is especially critical whenever the law assumes that different kinds of people—men and  c h e s h i r e c a l h o u n women, whites and blacks, birth mothers and adoptive parents, adults and children, heterosexuals and homosexuals—are differently emotionally constituted and thus warrant different legal treatment. A second aim in pursuing the link between same-sex marriage bars and the cultural construction of romantic love is to shift the way we think about the debate over...