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.

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Posted by Matthew Lee Anderson

Matthew Lee Anderson is the Founder and Lead Writer of Mere Orthodoxy. He is the author of Earthen Vessels: Why Our Bodies Matter to our Faith and The End of Our Exploring: A Book about Questioning and the Confidence of Faith. Follow him on Twitter or on Facebook.

7 Comments

  1. A) I read a post recently which stated,

    When a minister signs a marriage license for the state, the minister now acts as an agent for the state, certifying that those she just married meet the requirements set forth by the state. In other words, the state tells the church who can and cannot get married.

    They decided to have a judge marry them under the law and a minister and church to marry them before God and in their Christian community.

    B) Opening marriage to gay couples does provide a “good” for society, for children, and for families. I know gay couples who adopted children and marriage does (or would, depending on where they live) provide that they are “reared in the context of a bond” which, though it did not give them literal life, for many gave them emotional and spiritual life as they were adopted out of foster systems, state protection, or abusive families of origin. These gay couples, capable and gifted as parents, need to be protected not only for the emotional whims of the adults, but for children and families as well.

    Reply

  2. Brian,

    Thanks for the comment. I might frame the situation you describe a bit differently–rather than ‘the state telling the church’ who it can marry, it seems like the church and state jointly perform marriage ceremonies. As marriage is an institution that necessarily ties us to this world (see Paul in 1 Corinthians 7), I think that’s appropriate.

    As for the good of society, I think the jury is still out on that. There isn’t really any conclusive statistical evidence on one side or another about the social situations you describe, as gay couples haven’t been able to adopt children for very long.

    matt

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  3. Matt,

    1. Would “conclusive statistical evidence” of the capability gay adoptive parents make you more likely to support gay marriage?

    2. What do you suppose would make gay adoptive parents conceivably “worse” than their straight peers? In other words, why not presume equal capability, even in the absence of “conclusive statistical evidence?”

    Reply

  4. Jim,

    Great questions.

    First, probably not. I am dubious that such evidence will ever be adduced, if only because I have a metaphysic that makes it improbable. If such results (assuming decent methodology) were brought forth, I would be intrigued by them but not yet ready to start supporting gay marriage. I don’t want the argument to rest upon the conclusions of sociology.

    Second–and I may just drop into my Christian worldview here, as I’m really wrestling over whether such conclusions can be ascertained via natural law–I suspect that gay adoptive parents would be ‘worse’ than their straight peers not because they are necessarily more sinful, or less loving, or any less capable of virtue.

    Instead, I think it would be worse–and this applies to your first question–for young people to grow up in such a household because they would unavoidably develop an (I think) misguided anthropology, through the implicit adoption of the principle that sexuality can be separated from its teleological foundation (which, for the christian, is grounded in created order) without consequences. While it may be a loving household, I would be concerned that this anthropology (which, I admit, is rampant and is probably the reason why homosexual activity is increasingly viewed as morally acceptable and homosexual marriage is probably inevitable) would have long term social consequences. As Jacques Ellul points out in one of the books I’m reading, the effects of social changes are often unclear when they first happen. They often take generations to manifest themselves. This is, I suspect, one of those situations (which is why I don’t want the argument to depend upon sociology, since sociology is very, very limited in the timeframe of its studies).

    Great questions, though. What I know about this discussion is that it’s not easy.

    matt

    Reply

  5. […] if George is right, then most defenders of traditional marriage (including this one) have been unwittingly harming their cause by grounding their understanding of marriage in goods […]

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