The recent California Supreme Court decision to sanction homosexual marriage has launched the question of the State’s relationship to matrimony back into the public consciousness. Jennifer Roback Morse, who was speaking this last week at Acton, has recently written a provocative defense of traditional marriage. At least Jason Kuznicki of Positive Liberty found it so:
Now, admittedly, it’s fair to turn around a number of these points. For example, the state most certainly forces me to accept — whether I’d like to or not — the validity of certain clearly facetious heterosexual marriages. And even if a marriage is traditional, safe, sound, and morally upright, it is still an attack on my own liberties to be forced by the state to recognize it as such. I’ll make up my own mind, thanks very much. If we’re going to use Morse’s very fine moral sensibilities on this point, then state recognition surely counts as a special favor for heterosexuals, too, and they should learn to do without it.
Make no mistake about it — this recognition of heterosexual unions constitutes “coddling and protection,” even when — a fortiori — heterosexual unions shouldn’t need it. After all, heterosexual marriages aren’t supposed to be creatures of the state, but of civil society. What we have here is perhaps an argument for abolishing state-sanctioned marriage, not for keeping gays out of it per se.
And if we abolished state-sanctioned marriage, what would we be left with? Why, we’d have private heterosexual marriages, regulated by churches and families. And that would likely be all. I suspect — I fear — that we would have virtually no private homosexual marriages. This would perhaps only prove Morse’s point that the one is a natural institution, while the other is generally speaking a grab at state power.
I know my husband disagrees with me, but I do believe that these are serious issues. I wish I saw a way around them. I don’t.
It’s perhaps the strongest indictment of same-sex marriage that virtually no homosexuals even tried to form married familial units before the idea of state-sponsored same-sex marriage caught on. Creature of the state? For the most part, we’re guilty as charged.
Worse, none of them can counter the numerous examples of gay irresponsibility out there. The promiscuity, the drug use, the impermanence of gay relationships — all of these suggest that gays who can take care of others are the exception, not the rule. It annoys progressives when conservatives mention these facts. (It’s also annoying when conservatives invent facts to make things seem worse than they really are. But let’s face it, things can be pretty bad here.) The notion that “gays can be responsible” calls for further investigation, to say the least.
This is a serious problem, not something to be brushed aside. The only solution I can see to it — and I know that conservatives will reject it immediately — is to insist that we’re not trying to legislate for “gays” at all. We’re not considering them as a group. That’s not the point of this sort of activism at all.
We are trying to legislate for individuals, on an individual basis, without reference to the groups into which individuals are placed. This frees us from either the collective guilt or collective responsibility tests. These things are traps, and this is the way that Morse wants us to think. For her, it seems, straight people are individuals, while gays are a collective. We judge the one on individual merits, and the other on whatever awful thing we happen to remember from the TV news reports of a gay pride festival. For whatever reason, it’s still terribly easy to think this way.
Kuznicki’s response to Morse’s argument underscores that the marriage debates hinge upon whether marriage is constituted by anything other than legal contracts. Kuznicki’s contention that Morse wants us to judge homosexuals on the basis of groups is almost right: the question is whether those individual heterosexuals who cannot procreate are a valid objection to the “pre-political” basis of heterosexual marriage, and whether those individual homosexuals who do have loving, committed relationships constitute a valid basis for homosexual marriage. For Morse and social conservatives, the answers are “no” and “no,” respectively. But not because we are judging homosexuals as a group. Rather, for Morse and other social conservatives, the question of the validity of homosexual marriage is not a question to be decided on the basis of sociology, but on morality and metaphysics. Such reasoning is, I think, commensurate with a liberal democracy. Whether it is commensurate with this liberal democracy, which seems to only acknowledge scientific rationale as “objective” is another question.
One further note: while Kuznicki rightly criticizes Morse’s use of “pre-political,” it seems plausible that she actually means something like “sub-political” or “sub-legal,” e.g. an institution grounded upon natural law (not the environment). If there is such a ‘sub-political’ (or better, ‘supra-political’) basis for heterosexual marriage, then it is plausible that the State could have an interest in promoting and protecting it to the exclusion of other forms of relationships.
In fact, Kuznicki’s contention that such “coddling” is inconsistent with the fact that heterosexual marriage is a creation not of the state, but of civil society, is unpersuasive. Individual liberties, which Kuznicki (rightly!) cares deeply about, are not a creation of the state (nor of civil society–I would presume they go even deeper than that). But that does not mean the state doesn’t have an interest in preserving and protecting them.