Martha Nussbaum’s recent defense of homosexual marriage in Dissent Magazine is one of the better defenses of homosexual marriage that I have read, and I suggest slogging through the whole thing. But it is, perhaps, most valuable for revealing that the debate turns upon whether marriage is fundamentally constituted by the volitional agreement of two individuals or something deeper.
When articulating the meanings of marriage, she points out that in each–the civil rights aspect, the expressive aspect, and the religious aspect–the state plays a pivotal role, and that in its current form it is rather unconcerned with the quality of the individuals to whom it grants the ability to marry, so long as they are male and female. As she argues later in the piece, because the state recognizes the expressive aspects of one class of people’s unions–males and females–then it is obligated to recognize everyone’s expressive aspects of marriage (homosexual marriage) 0r “get out of the marriage business” and simply adopt civil unions for everyone.
This is, not surprisingly, the route Jon Rowe takes as well. He writes:
However, libertarianism offers probably what is closest to true neutrality in a pluralistic world where we disagree over concepts of “the good.” All laws impose morality. And libertarianism stands for the least amount of government, and consequently the least amount of government imposed morality. Moreover, the legally imposed moral rules that libertarians endorse — that government should outlaw force, fraud and do little more — also form a lowest common denominator of agreement among all sane people (that is liberals, conservatives and libertarians).
Contrast all of this with Robert George’s recent op-ed in the Wall Street Journal:
Of course, marital intercourse often does produce babies, and marriage is the form of relationship that is uniquely apt for childrearing (which is why, unlike baptisms and bar mitzvahs, it is a matter of vital public concern). But as a comprehensive sharing of life—an emotional and biological union—marriage has value in itself and not merely as a means to procreation. This explains why our law has historically permitted annulment of marriage for non-consummation, but not for infertility; and why acts of sodomy, even between legally wed spouses, have never been recognized as consummating marriages.
Only this understanding makes sense of all the norms—annulability for non-consummation, the pledge of permanence, monogamy, sexual exclusivity—that shape marriage as we know it and that our law reflects. And only this view can explain why the state should regulate marriage (as opposed to ordinary friendships) at all—to make it more likely that, wherever possible, children are reared in the context of the bond between the parents whose sexual union gave them life.
If marriage is redefined, its connection to organic bodily union—and thus to procreation—will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play. But there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.
Yet it is precisely the loss of government sanction for marriage at all that Nussbaum and Rowe would be content with, and I suspect George’s statement of his worry will do nothing to persuade the opposition. And no wonder. For Nussbaum, marriage is constituted without any connection to any particular bodily union, which is why her only defense against incestuous marriages is that the state has a countervailing interest (health risks) and so is obligated to outlaw them. But once this health risk is overcome, Nussbaum’s position has no such defense.
But I have worries about the ‘minimalist’ solution Rowe suggests, as it’s not clear why we should adopt it with respect to marriage but retain the freedom of intervention on other matters. The state, after all, is often called on to make moral judgements, even on religious matters. As O’Donovan writes in Desire of the Nations, “Are sacred ancestral lands protected against plans for mining or other developments? Is drug-taking, or sex with child prostitutes, a valid religious activity? …Must those in quest of unemployment benefit be prepared to accept work on Saturdays or Sundays?” These, among others, are questions that such a ostensibly neutral state would have to answer, yet in order to answer them it must make some reference to a theory of ‘the good.’
The minimalist theory of the state, then, seems to be neutral only in theory. In reality, the minimalist theory cedes power to the government to make moral decisions outside of any normative framework (i.e. ‘the good’). As such, itis highly likely that the state and the church (by virtue of their competing authorities) will come into irreconcilable conflict, and what begins as a defense of religious freedom transform into persecution. As such, the subversive nature of political liberalism is hidden by its ostensibly neutral character. This is, at least, my worry.