Is Marriage the Right Battle? Are We Fighting it Right?

From a reader:

Okay, question.  No-fault divorce, contraception, and abortion have all been declared constitutional in the U.S. Do we really have a legal leg to stand on then on the marriage amendment?  If marriage is defined (as it really is now) as “two consenting adults who want some legal benefits for living under the same roof” then there is no reason why everybody shouldn’t get in on this deal and would be discriminatory to deprive one group of that.  We have to trace back all the way to defining marriage as, not just as “between one man and one woman,” which, it seems (based on what little information I have of legal matters), that it hasn’t got much leg on which to stand, but to define it as “taking responsibility for the emotional, spiritual, and physical consequences of sex by placing both restrictions and benefits on those who publicly claim their participation on this fundamental unit of society.”  Shouldn’t that be the definition we fight for?  All this “one man and one woman” stuff makes us sound like stuffy religious bigots.

And then we really need to be fighting existing legislation harder than this new stuff.  Because the new stuff is only a natural and expected consequence of the existence of society’s whole-hearted rejection of connecting sex with consequences (by passing no-fault divorce, abortion, etc.)

Well, that wasn’t a particularly well-formed question.  But I was wondering what your thoughts were, because it’s started bothering me recently with all of this marriage amendment stuff cropping up.  I need to know if I’m picking the right battles here.

I follow your meaning well enough, dear reader.  Now please try to follow mine, because it… winds.

First, if you find a single member of the natural-marriage A-team, from Robert P. George to Maggie Gallagher to Stephen Heaney to Rick Santorum, who is not fighting the contraceptive culture, no-fault divorce, and abortion as hard or (especially in the case of abortion) even harder than against redefining marriage, let me know and I’ll have a sit-down with them.  More broadly, the whole right wing is at war with the “sexual right to privacy” the Supreme Court endorsed to justify some of its more absurd constitutional excesses.  Now, side question: is the ultimate endgame on contraception outlawing it?  Probably not.  But the ultimate endgame on same-sex marriage is probably not outlawing sodomy again.  Having given up on having the state enforce moral values on its citizens, we are satisfied if the state does not foist some other, destructive set of moral values on society and call it good.  With marriage, that (probably) means we let people have sex however they like, but isolate one particularly valuable kind of sexual partnership, call it good, and provide certain benefits.  With contraception, that (probably) means we let people run around with whatever sponges and pills they want (except abortifacients), but we stop subsidizing them through government to the tune of billions of dollars every year, don’t encourage their use in schools, and maybe tax them punitively the way we do cigarettes.  (Geeze, I hope my oppo research never reads this.)

You’ll notice that the first of those endgames, the one about (primarily) homosexual marriage, has already been accomplished by ballot amendment in thirty-one states, and the second one sounds like crazy nonsense that could never happen in this country.  That’s because, as a rule, in politics, it is easier, and sometimes more effective (in the long-term) to appeal to people’s common sense in extreme cases of a bad idea, then work backwards until you eventually delegitimize something that was actually quite popular a few years or decades before.  This is basically the strategy the pro-life movement adopted in 1992 after Casey, and it’s helped us build a culture of life.  We banned partial-birth abortion, we defined feticide as homicide under federal law, we passed out free ultrasounds like candy, and we established in the popular consciousness the idea that the unborn are basically just like babies, only smaller.  Planned Parenthood has been on the defensive for most of your life, fending off restriction after steady restriction.  The rising generation is more pro-life than the last by significant margins.  Being young and not inclined to read a lot of stodgy old documents from the 1970s, you may not realize how remarkable this is.  You’ve seen me criticize the plodding caution of some pro-lifers, but the success of the incremental strategy has been amazing.  Forty years of trying to slow down the cultural train taking marriage off a cliff have finally started to work, just as the engine is teetering on the edge and a few cars have already fallen off.  Now we’re pushing back, not just trying to slam on the brakes, and we’re starting with the battle of the moment in which we find ourselves embroiled: the same-sex marriage question.

This is a question of considerable importance, because its effect is permanent.  It’s still possible for us to roll back no-fault divorce.  The ideas exist, the underlying laws exist, the court precedents exist (more on this later); we just have to convince voters to listen to their own best sense of what marriage is, and realize that it is supposed to be a committed, childrearing man-woman couple, for all the reasons we usually give.  And we are trying!  The natural view of marriage as an essentially sexual, child-oriented complimentary union is still there in the lawbooks and in the culture, in a coma but still breathing.  If you redefine marriage, though, that’s it.  Game over.  There’s no obvious way to come back from that, as a culture, ever, short of Ragnorak.  So we’re not just fighting the gay-marriage front because it happens to be where we find ourselves, or because it’s strategically the easiest fight to win.  We’re also fighting it because if we can’t win this one, right now, in this place and this time, we’re done.  Game over, at least for as far as the eye can see.

We may still lose, of course, for all the reasons you mention.  The train really is right on the edge of the cliff, and all polling indications agree with the logical assumption: that it’s tipping forward.  I’ve even seen Maggie Gallagher wondering aloud whether she’s fighting a battle she can win, or just laying the groundwork for some future generation to start putting the pieces back together.  But we are not, as you wonder, “without a leg to stand on.”  Not entirely, anyway.

Fortunately, not even our black-robed masters on the SCOTUS can take destroy millennia of marriage law and practice in thirty years.  Not completely, anyway!  It has said that the state can’t stop people from contracepting, which is a long way from saying that married people should contracept, and is an even longer way from saying that marriage is just a convenient word for people shacking up together so the government can give them benefits, not a procreative union of mutual responsibility and permenance.  In fact, the only U.S. Supreme Court precedent on same-sex marriage is a Minnesota supreme court decision called Baker v. Nelson, which says just the opposite: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”  It was upheld unanimously and without further opinion by the U.S. Supreme Court.  (The whole thing is worth reading, because it basically summarizes our case, with links to relevant SCOTUS decisions like Loving and Skinner.) This basic view is enshrined in our law, whether explicitly, implicitly, and/or by the legislative record, in every state and at every level.  We’ve done much to weaken it over the past few decades, but we haven’t actually destroyed it yet.  It is how we are defending marriage law in the courts under so-called “rational basis” review (whereby a state must show a minimum “rational basis” for “discriminating” against a “suspect class,” in this case homosexuals).  We frequently win, and always should.

Now, does the culture view the definition of marriage as “two consenting adults who want legal bonuses for living under the same roof”?  Certainly it does in many places, perhaps most.  This happened for the reasons you describe, and it seems to me that it’s still largely getting worse.  It’s pretty incredible to me that we are still winning marriage definition referenda, actually.  But the law does not say that.  Yet.  The law still remembers what marriage is all about, and we can still build a winning case out of that by kind appeals to voters’ good sense.

Hopefully, that’s a first step toward winning skirmishes on all those other fronts as well.  And hopefully our victories on the other battlefields contribute to a stronger culture of marriage on this one, too.

Not a totally satisfying answer, I know, but that’s because politics is not a totally satisfying sphere of business.  To wit: we shouldn’t just fight for “one man, one woman,” because we should emphasize why one man / one woman marriage is the only right marriage for the civil government to recognize (if any).  Eventually, that is the definition (if any) that we want to put in the lawbooks, though, because statutes don’t give reasons, just definitions, and it’s catchy for the bored supporters.

I am falling asleep at keyboard and have been for fifteen minutes, so I’m calling this a night and sending this unedited.  I hope it’s helpful, and if unclear at any point blame the sleeps and ask for clarification.

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