Before the judiciary settles [the same-sex marriage] question — or perhaps leaves it
unsettled — it would behoove us to pause in this rush, and ask what
purpose the institution of marriage serves in our society
says
Ed Morrissey (thanks to Robert Tracinski) in a
The Week post which mirrors my own post from almost two years back (
To Understand Liberal Issues Like Gay Marriage Correctly, It Is Vital to Get the Basic Premises Right).
Let's start by refining the argument. Supporters of same-sex marriage
talk of "legalizing" gay marriages, but that's not an accurate depiction
of current law. No U.S. state, regardless of its definition of
marriage, will prosecute same-sex couples who call themselves "married,"
nor should they, outside of an intent to defraud — which is a crime
regardless of the sexual circumstances. In fact, the government has a
very limited legitimate interest in sexual or living arrangements.
Especially after the Lawrence v. Texas case, the government has
no role in regulating sexual activity with the exceptions of
consanguinity (close blood relations), use of force and victimization,
commercial trafficking of sexual favors, and exploitation of minors.
No one wants the government to dictate who may or may not share a
bed, outside of those exceptional circumstances. Those who choose to
cohabit in non-traditional relationships have ample options for
formalizing their arrangements through the private contract process,
which government enforces but does not sanction. That leaves
adults free to choose whatever sexual arrangements they desire outside
of the actual prohibitions that are objectively applied to everyone.
That is actual freedom and equality.
Marriage, however, is a unique status even apart from religious
concerns, which I'll address later. Marriage licenses exist as
government recognition of the unique procreative potential of
heterosexual relationships. The government takes a special interest in
that potential for good reason — because a failure of the procreators to
act as proper guardians forces the government to build safety-net
systems for children whose parents either cannot or will not provide for
them. Marriage provides a structure for assigning responsibility for
children potentially produced by heterosexual relations. Put simply, it
fixes responsibility for paternity on the husband, regardless of who may
have fathered the children during a marriage — a fact that more than a
few cuckolded husbands have discovered during divorce settlements. That
structure ensures that the state can enforce responsibility for the care
of its most vulnerable citizens, even to the extent of criminal
prosecution for neglect.
In Western societies, including the U.S., marriage has always been a
forward-looking institution aimed at protecting and nurturing the next
generation of children, not a love license for the adults of the present.
Most states, until relatively recently, provided incentives for
marriage and disincentives for divorce. Social experimentation
undermined both, and safety-net programs accelerated the process. Thanks
to no-fault divorce laws that put the whims of adults over the needs of
children, the results of devaluing marriage for heterosexual unions
have produced heavy social costs for the past few generations that have
fallen outside of the traditional family structure.
… In pushing to overturn a referendum passed by a large majority in
California that enshrined the traditional definition of marriage into
the state constitution, the opponents of Proposition 8 argue in essence
that both the process and the policy chosen by the voters are entirely
illegitimate. Voters used a direct-democracy mechanism that has existed
in California for decades to amend the constitution no differently than
other such propositions, and affirmed the definition of marriage that
has existed during the entire history of this country. The challengers
don't like the outcome, and argue that nine justices should only accept
as a legitimate result of that referendum a definition of marriage that
until the last few years few would have accepted, and negate a
legitimate outcome in an election. That's an argument for an oligarchy
or an autocracy, not a democracy.
Tolerance, it seems, works only in one direction — and that brings us
to the religious argument, but not in the manner one might think.
While as a practicing Catholic my definition of marriage involves its
sacramental character, I understand that others may not share my faith
and perspective on its meaning or value. That, however, will not work
both ways, as recent examples have made plain. For example, a baker in
Oregon faces potential criminal charges
for refusing to provide a wedding cake for a same-sex couple because of
his religious beliefs. What happens when churches refuse to perform
such ceremonies for the same reason?
Most people scoff at this question, but religions have partnered with
the state on marriages in a way that bakers have not. Priests,
ministers, rabbis, and imams act in place of the state when officiating
at wedding ceremonies, and states that legalize same-sex marriage are
eventually going to be forced by lawsuits to address that partnership,
probably sooner rather than later. In similar partnerships, that has
resulted in pushing churches out of business.
… It's not difficult to see the writing on the wall when it comes to
the ability of churches to perform a core sacrament in any meaningful
sense once the government changes the definition of marriage.
The best outcome would be for Americans to recall the limited state
interest in marriage and preserve it as a forward-looking institution,
and return to incentivizing families rather than lowering barriers to
failure.
Indeed. To return to the no-fault divorce laws "endemic to a governmental regime whose very existence is predicated and
dependent on the power to remove children from their parents",
Stephen Baskerville writes that the
practices and powers [of the nation's family courts] are undermining constitutional government in its most fundamental principles. The power to take children from their parents for no reason is arbitrary government at its most intrusive, since it invades and obliterates all of private life. Yet we have created a governmental machinery that exists for no other purpose.
Lenin: "Destroy the family, and you destroy society"
