November 19, 2003
ANOTHER ONE FOR TEDDY'S FILES:
Just What Is Marriage Anyway?: The gay-rights ruling by Massachusetts' highest court undermines the family as an institution (Douglas W. Kmiec, November 19, 2003, LA Times)
Reserving marriage to a man and a woman has never been premised on mean-spirited exclusion. It is the rational belief based on millenniums of experience that marriage is a cultural institution, not merely a lifestyle choice. Marriage promotes procreation, ensures the benefits of child rearing by the distinct attributes of both father and mother and makes intimate sexual activity orderly and socially accountable. That not every marriage is blessed with children hardly meant, until now, that states had to fashion laws for the exception rather than the rule.As a cultural matter, unless reversed by the people of Massachusetts by constitutional amendment, Tuesday's decision further embeds the highly self-centered notion of marriage as merely gratifying the desire for intimacy. Of course, abiding friendship has always been necessary for a good marriage, but to find, as the Massachusetts court did, that marriage is merely a long-term, permanent commitment while expressly rejecting as its essential aspect the begetting and moral formation of children is to severely injure community by elevating self over obligation to others.
Massachusetts has declared the thinking of all the nation - except itself - to be irrational. In doing so, it denies that marriage fosters an accountability to family. Construction of a family through marriage forms a bond between husband and wife and thereby invites natural kinship and an interconnectedness that is irreplaceable.
As a legal matter, Congress has anticipated the Massachusetts aberration. In 1996, President Clinton signed the Defense of Marriage Act, or DOMA. It defines marriage, for purposes of federal law, as the union of a man and a woman and affirms that no state is required to recognize a same-sex marriage contracted in another state.
On its face, DOMA seems constitutionally well drafted, capable of preventing the Massachusetts mistake from spreading nationwide. Congress has express authority under the U.S. Constitution to enact laws concerning the "effect" of out-of-state rulings. It is also well-settled law that although recognition is generally given to out-of-state marriages, they need not be recognized if they violate a strong public policy of the receiving state.
But does well-settled law or cultural tradition count any longer?
One admirable thing about Mr. Kmiec--whether you agree with him or not--he continues to leave a paper trail despite speculation that he'll be appointed to the bench by President Bush. Posted by Orrin Judd at November 19, 2003 7:19 PM
Great stuff, but I must allow that, were I gay, I would wonder about the sudden flood of articulate, impassioned defences of the traditional family with their emphasis on duty and family. I haven't read so much lyrical common sense since the ERA fight. But are we just talking this way so we can beat back the gay challenge and then return to our "me first" ways or is there actually a hope we will stem a noxious tide that started with Hugh Hefner and Kinsey? It would be awfully nice for conservatives to really see a brighter future for their children for once.
Posted by: Peter B at November 20, 2003 5:34 AMWe beat ERA--well, really it was pretty much just the great Phyllis Schlafly.
Posted by: oj at November 20, 2003 8:00 AMI know. Hers was the lyrical common sense I was referring to. But the win didn't halt a lot of downward spiraling in the culture wars, did it?
Posted by: Peter B at November 20, 2003 8:15 AMWe'll never halt it--we slow it.
"Evil is not good's absence but gravity's
everlasting bedrock and its fatal chains
inert, violent, the suffrage of our days."
-Geoffrey Hill, De Jure Belli ac Pacis
Peter is correct. The shift in the definition of family to a means for adults to seek intimacy (or whatever adults seek in marriage) has already occured in the heterosexual culture. Restricting marriage to man-woman at this point is like closing the barn door after all of the cattle have escaped in order to keep the rooster in.
Posted by: Robert D at November 20, 2003 12:40 PMJust cause your cattle have been rustled doesn't mean you have to let some chicken-thief grab your rooster.
Posted by: OJ at November 20, 2003 1:17 PMJust don't pretend that holding onto the rooster will help you get your cattle back.
Posted by: Robert D at November 20, 2003 1:41 PMYeah, but the rooster may wake you up in time to go get your cattle before they're ground round.
Posted by: OJ at November 20, 2003 1:52 PMI haven't read such a visually concrete metaphor for public policy since Orrin used beer glasses in a tavern to explain the Declaration of Independance.
Robert, I wasn't suggesting we give up. How about we use the occasion to to whip up a tide of righteous rage and use it to reverse a few other mistakes. I mean, Jeff wants theocracy, we'll show him theocracy!
Posted by: Peter B at November 20, 2003 2:29 PMPeter,
No theocracy, please! If you hadn't noticed, I am one of the contributing athiests to this blog.
Personally, I am ambivalent on the gay marriage issue. I don't see that it would have any
practical impact on marriage mores, but I also don't see any practical benefit that it will
bring to gays that they do not already enjoy. Basically, this is a battle of symbolism. Both sides want their cultural values embodied in the constitutional framework as a matter of fundamental principle.
I say that it should be left up to state legislatures, the courts and congress should leave it to the people. Government should stay out of the cultural symbols market.
If you want to "round up the cattle", you will have to start with your own back yard. How many of your conservative friends have been divorced? How much public shame have they been made to suffer within your social group because of it?
What does the shame of failure have to do with the ontology of being gay? Very unflattering parallel, there. I hope you're not on the gay "marriage" advocates' side.
Posted by: Judd at November 20, 2003 4:47 PMRobert D:
No, I didn't notice you were an atheist. But maybe that is because all you atheists look the same to me. :-)
I actually don't disagree with your point about symbolism, unless you are denigrating symbolism. How do you feel about flag-burning and the pledge of allegiance?
Your point about divorced conservatives is just the most recent jab in a century-old effort by secularists/atheists to elevate hypocrisy to the highest sin. As atheists believe in nothing beyond their own instincts and desires, they have a built in protection against this charge. At its silliest, I offer Harry's comment that no one can complain about cell phones if they don't have one. At a deeper level, why wouldn't you particularly respect the views of conservatives who have divorced, gone bankrupt, gone to prison, etc.? Matbe they have learned something. It doesn't surprise me that so many saints started life as sinners.
Otherwise, I defer to Judd, who answered you with a brevity and clarity I couldn't match.
Posted by: Peter B at November 20, 2003 7:06 PMMarriage wouldn't be such a political hot potato if society would stop giving political rewards to those who marry.
Of COURSE those barred from marrying want in.
If what we're trying to encourage is childbearing, why not address that directly ?
A $10,000, tax free, per-child birth bonus should help in that regard.
Last year, it would only have cost $40 billion.
Michael's point is spot on. The whole rationale for tax and other benefits is surely to compensate for economic disadvantages caused by dependencies of some kind, not to reward love. Reading the threads around here on this issue one could get the impression that getting married is akin to winning the lottery. That would come as news to most families.
Posted by: Peter B at November 21, 2003 5:27 AMMichael:
To heterosexual married couples who have to refund the money if they divorce before the children are 18.
Posted by: oj at November 21, 2003 8:12 AMOJ & Peter,
I am not using the "conservatives are hypocrites" ploy, but what I am saying is that the easy acceptance of divorce in our society is much more responsible for the problems with marriage than gay marriage ever could be. Even among conservatives, divorce is widely accepted today. Rarely is anyone called to account for their decision to divorce. Because it is widely accepted, people are more likely to divorce when their marriage hits a tough spot, and base their decision on their own needs rather than the needs of society as a whole. We are all responsible for that.
Peter, symbolism is important, but government is a poor safekeeper for society's symbols, and the reliance on government to promote them tend's to encourage laziness in the populace to promote their values in the culture, just as government retirement programs make it easy for people to ignore the need to save for retirement.
Robert:
I don't disagree. I'd not allow divorce or at least have severe tax consequences and no remarriage.
Posted by: oj at November 21, 2003 5:19 PMPeter, to answer your other questions: I am not a fan of the flag burning amendment, mainly because there is no flag burning problem to speak of. The real measure of the flag as a symbol in our culture is how many people fly the flag, not how few burn it. I've flown the flag from my house for as long as I've owned it, but I am a minority in my neighborhood. There are as many butterfly and tulip flags in my neighborhood as American flags.
I have no problem saying the Pledge of Alliegance, but I remain silent during the "under God" phrase. You may call me a hypocrite for that, but I think it more important to demonstrate my patriotism than to quibble about it. I don't think "under God" is necessary, the original pledge was fine.
To say that athiests believe in nothing but their instincts and desires is utter rubbish. I neither think that hypocrisy is the utmost sin, nor do I consider myself immune from the charge. I am a strong believer in the family, I take the health of the family as seriously as you do. My point is not to condemn sinners, but to point out that strengthening family values in our culture will involve bringing back social disapproval for those things that have weakened them, like divorce. You know, love the sinner, hate the sin.
OJ, I am not an advocate of gay marriage, I just don't think it is the canary in the coalmine (to use another metaphor) that you think it is. It is a trailing indicator, not a leading indicator. The cows are already gone, the coalmine has been saturated with deadly gas for a long time.
Posted by: Robert D at November 21, 2003 5:20 PMoj:
The money should count against any gov't welfare benefits the parent/s receive, but why quibble over gender or marital status ?
I thought that your perception was that future workers would be in short supply. Why need they be raised in two-parent breeder households ?
My solution is simply to annex Mexico.
The US gets plenty of workers, a high birth rate, plus plenty of natural resources; Mexico gets a stable, uncorrupt gov't, and US management practices, which should unlock a lot of hidden value in Mexican assets.
Robert D
Boy, I just hate it when atheists make so much sense!
You will get no argument from me that Hugh Hefner and a coterie of popular behavioural gurus are more responsible for the sickness of marriage than all the gays in America. Nor do I believe gay marriage will make a huge immediate, concrete difference, mainly because I don't expect they will marry in significant numbers. But OJ is right. There is nothing wrong with drawing a line in the sand over one specific issue even though the problem transcends it and even though one was asleep at the switch for years. North Americans have muddled through the last fifty years in absent-minded, selfish confusion about what marriage is or should be. The changes were by and large conceived as minor palliatives that would free a miserable minority without affecting the happy majority.
That argument can no longer be made credibly in an era of 50% divorce and millions of parentless children. The gay issue has forced many to confront head-on what the institution is all about and to stop ducking or dissembling to avoid being labelled intolerant or small-minded. We should no more despair about lost cattle than the Brits should have abandoned Poland on the basis that they had already let Austria and Czechoslovakia go. But we musn't just try and block gays and then return to our comfortable decadence. If I were gay, that would disturb me. In a sense, they are laying down a far more profound challenge than they realize.
As to the flag and pledge, I threw those in too fast (dare I say symbolically). I'm not an American and those aren't my issues. What I meant was that the symbolism of marriage is very real and important and musn't be discounted despite Jeff's heroic efforts to do so. For centuries both men and women have urged their children to marry with few dissenters. Given how demanding and emotionally risky the institution can be, one would have expected far more caution and warnings, especially from all those miserable entrapped people modern liberals insist existed. Ditto if it was just about objective returns like sex, protection or even companionship. Those are all available far more cheaply elsewhere.
And so, marriage has a transcendental beauty and reality that David expressed artfully the other day and that Jeff will deny to his dying breath. It really only comes into relief with children because it transcends our own immediate happiness and security. In short, it gives life its purpose for most, and I feel sorry for those who seek purpose in careers or other self-regarding areas--too many find too late they have been trying to quench an unquenchable thirst. Only those with a true alternative vocation can be fulfilled (not happy) without it, although it provides no guarantee of fulfillment to be sure. How reverant atheists like you perceive this aspect is a mystery to me, but I am listening.
I apologize for the unfair crack at atheists, but you were a little casual about the hypocrisy.
Peter
No problem, I re-read my post, and it does come off somewhat accusatorial.
I think we are in agreement. The symbolism of marriage is very important, I just think that conservatives look too quickly to government to safeguard cultural values. Culture is like a large, amorphous force of nature, like the economy. It is the aggregage result of many private, individual decisions. It can no more be controlled by govenment than the economy can. Marriage will come back when the balance of those individual decisions goes in its favor. I think that many people are starting to see the truth of what you say, about how hard it is to find purpose without marriage and children. I think that even married, childless couples are finding this - I know several couples like this. It seems to be that the wife doesn't want the children, and the husbands feel the loss of never being fathers.
I am a very "religious" athiest, in that I continue to ponder the important questions that philosophers and religious people have always asked.
Gotta leave for my daughter's choir concert. More to say later.
Posted by: Robert D at November 22, 2003 9:08 AMPeter B:
I'll bet you a year's wages, (mine), that you are misreading Jeff Guin's arguments, and attitude.
Hugh Hefner had precious little to do with the deterioration of marriage in North America.
First off, he's a lagging indicator, not a leading.
Secondly, at the beginning, far from having airbrushed fantasy babes, that few real women could match, he often featured ordinary women.
Michael:
Thank you. He is.
At the risk of pointless reiteration, here is the gist of my argument:
Civil marriage is not the same as religious marriage. In a secular society, it is (my view) an unwarranted intrusion of religion to impose a sectarian viewpoint on a secular institution. (Never mind that sectarian viewpoints themselves don't agree). It is as unwarranted an intrusion of religious freedom for the state to direct Catholics to marry divorced people as it would be for Catholics to prevent divorced people to obtain civil marriages. Just as it would be an unwarranted intrusion for one sect to prohibit or require another sect performing marriages based on considerations fundamental to one, but irrelevant to the other.
The functional requirements for civil marriage have nothing to do with the gender of the participants. Excluding a group of people from participating in a civil institution, despite their ability (that is, no better, or no worse, than existing participants) to conform to the functional requirements of that institution, is discrimination logically indistinguishable from that practiced against blacks and women in our not very distant past.
I am, in fact, religious. I'm a very deep believer in our civil religion that is based on a universal entitlement to life, liberty, and the pursuit of happiness. Therefore, I find it unacceptable to inhibit a group's exercise of that entitlement if it doesn't materially impact others'.
Homosexuals are not free to choose heterosexuality and heterosexual marriage. Any more than you are to choose homosexuality.
Homosexuality has no more inherent moral component than does heterosexuality: any context within which heterosexual expression is moral is also a moral context for homosexual expression.
In a previous thread on this subject, David noted the ages long predilection for people to marry, even when there were no material benefits to be gained thereby. Based on that evidence, marriage apparently fills a deep human emotional need. Homosexuals are humans, too.
So my arguments for same-gender marriage are based on separation of church and state, the universal applicability of civil institutions and contracts, the distinction of civil and religious marriage, and the absence of any even remotely convincing argument as to how same-gender marriage will affect existing marriages, or the desire for people to get married in the future.
But possibly most importantly, I deeply treasure my marriage, and hope that as many people as possible can find the same endlessly satisfying emotional refuge that I have.
So, no, Peter, I don't find the symbolism of marriage unimportant, and I don't deny its beauty. Quite the contrary. I find it so important, so fundamental to a happy life that I believe excluding homosexuals from it is simply cruel.
Now you may disagree with my conclusions. That is fine. But your accusations indicate you haven't understood, or I haven't conveyed, my argument clearly.
Posted by: Jeff Guinn at November 23, 2003 10:22 AMJeff:
Why do you think it is all a problem of communication? I believe I do understand your argument, which you express very well. But I think you are wrong.
Pay up, Michael.
Posted by: Peter B at November 23, 2003 10:52 AMPeter:
That is as may be.
But when you accuse me heroic efforts to discount the symbolism or importance of marriage, or that I will deny marriage's transcendant beauty and reality to my dying breath, then you are well and truly wrong. Unless, of course, you can quote me to the contrary.
I believe that marriage's symbolism, beauty and reality are so important it should be extended to anyone desiring it, so long as they are willing to adhere to its rigors.
It is your accusations that are in question, not your disagreement with my argument.
You owe Michael.
Posted by: Jeff Guinn at November 23, 2003 1:35 PM"I believe that marriage's symbolism, beauty and reality are so important it should be extended to anyone desiring it, so long as they are willing to adhere to its rigors."
The initial rigor is that you choose a partner with whom you can fulfill God's command to procreate.
Posted by: oj at November 23, 2003 1:37 PMOJ:
Civil marriage, which is the marriage at issue here, is not religious marriage.
Civil marriage is not predicated on procreation.
And for those of us who don't believe God issued such a command, that is hardly a reason to prohibit civil marriage to those who cannot procreate.
After the Falklands war, a Catholic Dioces in England declined to marry a couple because his injuries precluded his ever having children.
Is that a position you care to second?
Posted by: Jeff Guinn at November 23, 2003 2:10 PMJeff:
I don't have a problem with it, no.
Civil Marriage is, of course, predicated on religious marriage and procreation and the whole lot.
Let homosexuals have their own civil institution, separate from marriage, whoose structure they do not and can not fit.
They have an interest in such an institution. Society does not.
Posted by: oj at November 23, 2003 2:27 PMOJ:
I am so sorry, I didn't know there was a square to fill on the marriage license indicating that religious requirements for marriage had been met. I apologize for my abject ignorance.
On the other subject: I don't have any problem with it, either. After all, it is the Catholic sanctification of marriage that was in question. However, would you deny them a civil marriage license? Would you deny them marriage within the Anglican faith, which didn't have a procreation requirement?
You are arguing for giving a separate nomenclature for civil marriage to distinguish it from religious marriage. But the distinction exists, regardless of nomenclature.
Posted by: Jeff Guinn at November 23, 2003 5:15 PMJeff:
Perhaps the solution to all these problems llies in separation of Church and State. Let the government stop calling its arrangement marriage altogether and call it a civil union. Such unions could be made available to homosexuals too.
Posted by: oj at November 23, 2003 5:57 PMOJ:
I could not possibly agree more.
And as a proof that is not some sarcastic sop, I also have to admit that is the goal towards which I was fumbling, but would not have identified so clearly on my own.
Posted by: Jeff Guinn at November 23, 2003 9:13 PM