About Marriage

So the anti-Proposition 8 protests are ongoing, and never one to be late for the ball, even reaching the relative wilds of Montana. It's never too late to create a fake controversy in order to raise awareness money for the greater cause, no? I just find it interesting to note that the majority of protests seem to be directed at the LDS crowd who, like the rest of homosexual California, make-up about 2% of that state's population. Better for one fringe group to protest what for many others is a fringe group, otherwise you'd see the protests spilling into the relative ghettos of South-Central or the barrios of East Los Angeles (where 80% and 70% of voters, respectively, voted against homosexual marriage)...and we can't have one special-interest group at war with another special-interest group now, can we?

I've never been one for brevity...so bear with me.

The fact is that the institution of marriage is battered in our larger American culture. Battered but not lost. Much damage was done by legislation and bad policy, almost always in the name of “reform.” That legislation and policy now finds itself in need of reform.

If we are to restore and secure the institution of marriage we must recover a sound understanding of what marriage is and why it’s in the public interest for law and policy to take cognizance of it and to support it.

Marriage is a pre-political form of association, what might be called a ‘natural institution.’ It’s not created by law, though law recognizes and regulates it in every culture we know about. Nowhere is marriage treated as a mere private matter. While some on the libertarian fringe toy with the idea that marriage can be privatized, and even some who are not on the fringe wonder whether that might be in the circumstances the best solution to the controversy over what’s called “same sex” or homosexual marriage. I understand why someone would consider this idea…can’t we get out of this by simply privatizing it, by leaving marriage to churches, treating it like it was a baptism or Bar Mitzvah. This idea strikes me as a bad one, a spectacularly bad one.

There is a reason that all cultures treat marriage as a matter of public concern and even recognize it by law and regulate it. The family is the fundamental unit of our society. It is the original and best department of health, education, and welfare. Governments rely on families to produce something that governments need…vitally need…rely on…can’t get along without, but that on their own governments could never possibly produce. What’s that? It’s upright, decent, honest people who make law abiding public-spirited citizens. Government can’t produce that! Government depends on it vitally. If you’re a government and you’re trying to govern an utterly lawless people, and utterly immoral people, people who only respect the law because of the fear of punishment, it won’t work.

Legal philosophers have long known that the law will work only when the majority of people are obeying the law out of moral conviction and not simply out of fear of punishment. But government can’t produce such people. It relies on non-governmental institutions, fundamentally the family, assisted by synagogues, churches, and other civic and societal institutions to produce those people. The transmission of virtue is primarily if not overwhelmingly in the hands of the family, not in the hands of the government. Marriage is, of course, the foundation, the indispensable foundation of the family.

Although all marriages in all cultures have their imperfections, children flourish in an environment where they benefit from the love and care of mother and father, and from the committed and exclusive love of their parents for each other.

Those who have studied the consequences of divorce like Judith Wallerstein, Barbara Dafoe-Whitehead, and most recently and powerfully Elizabeth Marquardt, those who studied the effects on children of divorce found some surprising things. They found not merely that children don’t do very well, on the whole, in circumstances of family breakdown, they even found that the divorce of parents of adult children harms those adult children. That even as adults we are somehow deeply invested emotionally in our parents marriages.

There was a time when, some of you can remember it as I can, in the 60’s and 70’s, when a lot of people (a lot of people in the social sciences and psychology) proposed something that a lot of other people desperately wanted to believe, and that was, well, we should free up, we should have free and easy divorce because it will be better for the kids if parents who are squabbling all the time separate. That it will be better for the kids, the kids will be harmed by this, etc. It’s always “about the kids.” Sound familiar? It was a rather convenient thing to believe. It turns out, though, not to be true. 40 years of experience now subjected to social science research conducted by people like Wallerstein and Dafoe-Whitehead have shown that that truth, which would have been convenient if true for a lot of people, is just not true.

Now, anyone who believes in limited government should strongly back government support of the family. I don’t mean necessarily financial support. That gets into a very interesting but different set of issues. But government support for the institution of the family, the special recognition that we give to marriage and the family. The special status we give it, the special respect we give it, the special encouragement we give it through the structure of our laws. Now this shouldn’t sound paradoxical. Why here? In the absence of a structure of a strong marriage culture families fail to form, we now know that from the experience of so many of our inner cities. And when they do form they’re often unstable. Absentee fathers become a serious problem, out of wedlock births become common, and a train of social pathologies follow.

With families failing to perform their health, education, and welfare functions what happens? It’s predictable. The demand for government grows. Somebody’s got to step in to deal with the problem, whether in the form of greater policing or to provide other social services. Bureaucracies then have to be created, whether they’re for increased policing or for the delivery of social services, and these bureaucracies inexorably expand, and indeed we all know it, they become powerful lobbyists for their own preservation and expansion. Everyone suffers with the poor and the most vulnerable members of our society suffer the most.

We need to rebuild the family in so many places where we have such breakdown. Not primarily for the sake of the middle class or upper class, although they suffer too from family breakdown. The real victims of the loss, the decline, the erosion of the integrity of the institution of marriage are the poor and vulnerable that depend so vitally on that institution.

The effective defense of marriage against the current onslaught will require an understanding of marriage as a moral truth. Practical or pragmatic arguments are legitimate and important, but too few pro-marriage politicians are willing to say much about what marriage actually is. This gives those who would abolish the conjugal conception of marriage, to replace it, to redefine marriage an important advantage in the public debate. They hammer away with their rhetoric of “love makes a family,” and demand to know how anyone’s marriage would be threatened if the same-sex partners next door were allowed to marry. We’ve all heard that argument ad nauseum. “Why is it any concern to you,” they ask. “How does it hurt your marriage, your family, your synagogue, if the law recognizes as a marriage the relationship of the same-sex partners next door?”

A lot of people on the pro-marriage side of the argument seem to be stumped by that argument. Everyone agrees that marriage, whatever else it is or does, is a relationship in which persons are united. It’s a union of persons. But what are persons? What does it mean to be a person? And how is it possible for two persons to unite? How is it possible for two persons to become one?

According to the view implicit in sexual liberation ideology, the person is understood as the conscious and desiring aspect of the self. A person is fundamentally a consciousness, a center of emotion and thought. The person thus understood inhabits a body, but the body is regarded (if only implicitly in many cases) not as a personal part of the human being, or a part of the person, but as a sub-personal aspect of the self. The body is viewed as serving the interests of the conscious and desiring aspects of the self by functioning as an instrument by which the individual produces or otherwise participates in satisfactions and other desirable experiences and realizes various objectives and goals.

For those who formally or informally accept this understanding of what human beings are, personal unity cannot be achieved by bodily union as such. Bodily union can’t be personal union because the body is not part of the personal reality of the human being. It’s rather an extrinsic object used by the real person, the consciousness, and the conscious and desiring self, in order to produce satisfactions that are desired. So, persons unite, if they unite at all, by uniting emotionally. If this is true, then persons of the same sex can unite and share sexual experiences together that they suppose will enhance their personal union by enabling them to express affection, share the uniquely intense pleasure of sex, and feel more intensely by virtue of their sex play together.

The alternative view of what persons are is the one embodied both in our historic law of marriage and in what Isaiah Berlin, the great British historian and philosopher of ideas, referred to as “the central tradition of western thought.” According to this view, human beings are not non-bodily persons who inhabit and use non-personal bodies as mere extrinsic instruments. The body is no mere instrument for inducing satisfactions for the sake of the conscious and desiring aspect of the self. Rather, a human person as reconstituted here on this earth is a dynamic unity of body, mind, and spirit. The body, far from being a mere instrument, is intrinsically part of the reality of the human being. Bodily union, therefore, is personal union, and comprehensive personal union, marital union, is founded on bodily union. Marriage is a comprehensive sharing of life meaning a marriage is, at all stages and all levels of a human being…the bodily, the emotional, the dispositional, the rational, and the spiritual.

But, what’s special about marital friendship, making it different from all other forms of friendship and sharing and unity is that all of the levels at which life is shared; the sharing is founded upon (the foundation of it is) bodily communion.

It also helps to make sense of the historic requirement, for example, of the consummation of marriage. It also explains why marriage can be only two people, and not three, or five, or seven. Two people can unite as a reproductive unit, they can fulfill the behavioral conditions of reproduction whether or not the non-behavioral conditions happen to obtain, but that’s not something that three people, or five people do. If marriage is merely an emotional union, because the person is merely the emotional center, the conscious and desiring self, the body not being part of the personal reality of the human being, then it’s true that sexual complimentarity is no part of the picture if two people of the same sex can be emotionally united. But by the same token, so can three, or five, or seven. So by no intelligible account can be given, no rational principle can be identified for saying why marriage should be two and only two people rather than three or four or five.

Fundamentally it’s clear that any argument that would give you, if you wanted to get there, a justification for same-sex marriage would equally give you an argument for polyamory, understanding that marriage is available for more than two people at the same time.

So, what’s unique about marriage is that it truly is a comprehensive sharing of life, a sharing founded on bodily union made uniquely possible by the sexual complimentarity of man and woman. A complimentarity that itself makes possible for two human beings to become, in the language of our Biblical ancestors in Genesis, to become “one flesh.” And for this one flesh union to become the foundation of a relationship in which it is intelligible for two people to bind themselves to each other in pledges of permanence, exclusivity, and fidelity. When the Bible teaches us in Genesis that a man shall leave his mother, a woman will leave her home, and the two shall become one flesh, it doesn’t say that the two shall become so emotionally close that it will be as if they are one flesh. It doesn’t speak metaphorically, as if this closeness is kind of like it would be to be one flesh. The two will be one flesh. It’s right there telling us that the bodily communion of spouses is the essence of marriage, the foundation of marriage. It’s not all that marriage is, but it’s foundational and essential to marriage.

Now, on this understanding, the one included again not only in the Bible but in the larger western tradition. Plato himself, as one of my former classics professors demonstrated beautifully in an article he published on the subject, even Plato was able to identify the same basic understanding. On this understanding, the body is not treated as a mere instrument of the conscious and desiring aspect of the self whose interests and satisfactions are the putative ends to which sexual acts are means. Nor is sex itself instrumentalized. The one flesh unity of marriage is not merely an instrumental good, a reason for acting whose intelligibility is a reason that depends on other ends for which it’s a means. This unity is an intrinsic good. Marriage is an intrinsic human good that’s not only an instrument for other things. A reason for acting whose intelligibility is a reason that depends on no ulterior reason or end. The central and justifying point of sex is not pleasure, however sexual pleasure is rightly sought as an aspect of the perfection of marital union is rightly sought, but the fundamental and justifying point, rather, is that marriage itself, considered as an irreducible bodily union of persons, the union effectuated by acts of sexual congress. Because sex is not instrumentalized in marital acts, such acts are free of the self alienating qualities that have made wise and thoughtful people from Plato to Augustan, and from the biblical writers to Kant, non-Christians and Christians, Jew and Gentile and even virtuous pagans like Plato and Aristotle have caused really thoughtful people always to treat sexual morality as a matter of the utmost seriousness.

On the sexual liberationist wing today, sex is just not regarded as a serious thing. It’s like any other innocent pleasure. It has no moral significance beyond the pleasure that it can give, or that people can share with each other. So why all these hang ups? “Why do you religious people have so many hang ups about sex?” It’s because those of us that are religious, and even some of that that are not but are morally serious, see what Kant saw, see what Plato saw, see what Augustan saw, that sex is so integral to who we are as human beings that it’s a very serious thing.

In truly marital acts, the desire for pleasure, and even for offspring, are integrated with and in an important sense subordinated to the central and defining good of one flesh…marital unity. The integration of subordinate goals with the marital good insures that such acts affect no practical dualism that separates the body from the conscious and desiring aspect of the self, and treats the body as a mere instrument for producing pleasure or any other extrinsic good.

But one might ask…but what about procreation? On the traditional view of marriage is not the sexual union of spouses instrumentalized to the goal of having children. Jews and Christians sometimes ask those questions. Now it’s true that Saint Augustan, in certain writings, seems to be a proponent of this view. The conception of marriage as an instrumental good, though, was rejected by the mainstream of philosophical and theological reflection from the Middle Ages forward, certainly in the writings of Aquinas for example. The understanding of sex and marriage that came to be embodied in both the Canon Law of the church, and the civil law of the state, does not treat marriage as merely instrumental to having children. Western matrimonial law as is traditionally and universally understood has marriage as consummated by acts fulfilling the behavioral conditions of procreation whether or not the non-behavioral conditions happen to obtain at the time, or for that matter, ever in the relationship. By contrast, the sterility of one of the spouses, the inability of one of the spouses to have children, so long as the spouses are capable of consummating their marriage by fulfilling the behavioral conditions of procreation, and thus obtaining true bodily organic unity, has never been treated as an impediment to marriage, even where sterility is certain and even when sterility is certain to be permanent. Children who may be conceived in marital acts are understood not as ends that are extrinsic to marriage but rather as gifts, fulfilling the couple as a marital unit and not merely as individuals, gifts that supervene on acts whose central and defining point is precisely marital unity.

While others obviously more intelligent that I have formed a strong moral case for the conjugal conception of marriage as the union of one man and one woman, pledged to permanence and fidelity, committed to caring for children if they may come as the fruit of matrimony. I argue that the notion that two people of the same sex can be married to each other would make nonsense of key features of marriage, and would necessarily require abandoning any ground of principle for supposing the marriage is the union of only two persons, as opposed to three or four or five. Only a thin veneer of sentiment, if it happens to exist and only for as long as it exists could prevent acceptance of polyamory as a legitimate marital option once we’ve given up the idea that the principle of marriage as a male-female union.

To those arguments, I will here add another reason to reject the idea of same sex marriage, and a very important one. The acceptance of the idea would result, indeed it has already resulted in, a massive undermining of religious liberty and family autonomy, as supporters of same sex marriage would and are now, in the name of equality, demanding the use of governmental power to whip others, synagogues and churches alike, into line.

The experience of Massachusetts, as well as the failed Proposition in California, and in many foreign jurisdictions, is that once marriage is compromised or formally redefined, principles of non-discrimination law are quickly used as cudgels against religious communities and family’s who wish to uphold true marriage by precept and example. The idea that the recognition of marriage laws, recognizing that the couple next door, who are of the same sex as being married, has no bearing on your life, has no bearing on your family, has no bearing on your religious community turns out to be spectacularly false.

We’ve seen in Massachusetts Catholic charities driven out of the adoption business simply because they insisted of being faithful to its church’s own teaching about the nature of marriage. And so, after more than a hundred years of placing orphan children in good homes, it was forced to either give up it’s license or compromise its moral principle rather than place children in the homes of same sex couples.

We’ve seen in more recently in California, in schools where children are subjected to curricula that their parents have a very difficult time of opting them out of, and in some jurisdictions are not permitted to opt out of, where they are taught that marriage is the union of any two people and love makes a family. If their parents think something different the view that is communicated to the children is that their parents are bigots, their parents are suffering from near-irrational phobias, their parents are guilty of the same sort of thing that people in an earlier generation were guilty of when they discriminated against blacks, or Jews, or other minorities.

What’s at stake are things like licensing rights, radio stations, tax-exempt status. In New Jersey there was a Methodist institution that lost the tax-exempt status for a piece of its property. It was a pavilion on the Jersey Shore where the Methodist community had invited and permitted other people who weren’t even Methodist to hold their marriages in the pavilion. When a same sex couple wished to take advantage of this, and have their marriage in the pavilion the Methodist church essentially told them ‘we’re sorry but our church teaches that homosexuality is wrong and that marriage is between a man and a woman so we can’t give permission for you to use that.’ What happened? Their tax-exempt status was stripped.

Part of the trouble that pro-marriage politicians and others have in defending marriage follows from the fact that these pathologies that afflict the marriage culture are widespread, and that supporters of marriage in being human, are not immune to them. Now this is not to excuse anyone from personal responsibility but the fact is that sustaining a marriage despite the collapse of many of its social supports is difficult. In trying to stand-up for marriage, many political leaders, intellectuals, and activists who have themselves had marital problems, are subjected to claims of hypocrisy. Many therefore censor themselves. As a result, the pro-marriage movement has lost the leadership of some of its most talented and articulate people.

While the question of same sex marriage is critically important, so is the question of rebuilding and renewing the marriage culture, in fact it is more important. By abolishing the basic understanding that marriage is inherently a conjugal union, the legal recognition of same sex marriage would, in my opinion, be disastrous.

Many would say that such recognition would simply ratify the collapse of marriage that followed from the widespread acceptance of divorce and non-marital sexual cohabitation, and other factors having nothing to do with homosexual conduct. What’s true is that the origins of the pathologies afflicting marriage lie in those factors. Rebuilding the marriage culture will require careful and incremental legal reforms to roll-back unilateral divorce, accompanied by herculean efforts on the part of non-governmental institutions, especially synagogues, churches, and other religious bodies, to prepare couples more adequately for marriage. Most of our religious institutions don’t do that very well. So many of our religious institutions don’t prepare married couples very well, or help them nurture relationships, or give them mentorship, or assist them in dealing with marital problems. People are beginning to recognize this now and many institutions are starting to help married people through the marital problems that happen along the way. Public-private work together will be needed, along with government and private organizations; will need to work together to help build the marriage culture. This won’t be easy, but if marriage weren’t so important it wouldn’t be worth saving as a civic institution.

As with abortion, same sex marriage is being advanced by socially liberal activist judges who exercise creative powers of constitutional interpretation. The three U.S. States that currently have same sex marriage, Massachusetts, California, and Connecticut, have it not as the result of liberation but rather via the direct imposition of the judiciary. That gives us additional reason to pursue with renewed determination the larger fight against the judicial usurpation of democratic legislative authority, another profound abuse of government power.

Some people have wondered whether the best way to handle the conflict over marriage and our politics would be a federalist solution, one that eschews a national policy on marriage and leaves it to each state to define marriage as it sees fit. I can see the appeal of that idea, though I think in the end it doesn’t hold. Just as the nation could not endure, as Lincoln said, half slave and half free but eventually had to go all one way or all the other, we will not be able to get by with a situation in which some couples are married in one state, say Massachusetts, but not married when they travel through another state, say Florida, but are married again when they reach another state, say Colorado. If same sex marriage is legally recognized in a small number of states it will spread throughout the nation either through judicial under the Constitution’s Full Faith and Credit Clause, or by the in working of informal cultural pressures.

Some states, Montana would be one, would try to hold out but sooner or later they would be whipped into line, the judiciary will eventually find you. That’s why we need a national resolution of the issue, and probably a constitutional one, but it looks like we are far from having the support at the national level in Congress to do that.

Believers in marriage did not start this fight, and we are loath to interfere with traditional state powers, precisely because we view federalism as serving the ideal of limited government and embodying our belief in the principle of subsidiarity. Judicial usurpation has now put into operation a chain of events that will result in the radical redefinition of marriage across the country unless action is taken. Action at the national level, going beyond the Defense of Marriage Act, which may yet be struck down by the courts to preserve the conjugal conception of marriage.

Well, the defense of life against abortion and embryo-destructive research call America back to the founding principles of our regime, our nation, and the reflection on the justifying point and purposes of government. The defense of marriage shores-up the cultural preconditions of a regime of democratic pluralism, and a government of republican nature, a government dedicated to human equality, the proposition that all men are created equal, and of fundamental rights and principles on the limits of governmental powers.

These causes, these moral causes, because they are foundational and so much else depends on them should not be regarded, should never be regarded as distractions from other pressing goals, even though there are other pressing goals. The fight against terrorism, the struggle for economic prosperity, the need to assist those whom are needy, the need to deal with the problem of poverty in our cities, the needs for environmental protection. These are all important, but the moral causes, the moral causes of life and marriage are not distractions. They are rather causes that spring from the foundational moral purposes of law and the state, and today they are certainly among the most urgent causes.

The Gay Patriot asks an important question. Where are the Grownups? I'm not sure where they are but I know they won't be the ones screaming in downtown Missoula or Billings this weekend. They're also not the ones sending "suspicious white powder" to Mormon temples in LA and SLC. This lunacy should shame anyone and everyone, past and present, who has ever fought for social equality.