SETTING OUR OWN HOUSE IN ORDER:

Contending for Marriage (Roberto Rivera y Carlo, May 2005, Boundless)

The late David Orgon Coolidge, who headed the Marriage Law Project at Catholic University’s Columbus School of Law, described what he called the “contending models of marriage.” By “model,” Coolidge meant a “claim about what marriage ‘really’ is.” The “traditional model ... views marriage as [an] institution.” While this model understands and honors the role that love and affection -- what Coolidge called the “interpersonal dimension” -- plays in the decision to get married, the “traditional” model nevertheless insists that this love and affection are lived out within an institution whose essence and purpose transcends the desires and intentions of the people getting married.

This essence and purpose is rooted in what Coolidge called “sexual complementarity -- the reality that men and women are ‘different from, yet designed for’ one another.” This complementarity is expressed in the procreation and nurture of children but is not exhausted by these “particular functions.” In other words, while having and raising children helps to order and make sense of marriage, there’s more to marriage than the kids. Sexual complementarity results in a bonding between two people wherein “one plus one adds up to more than two.”

The other “contending models” root marriage in something other than sexual complementarity. And unlike the communal dimension inherent in the “Traditional” model,” they see marriage in more private and even individualistic terms. The “Choice” or “Liberal” model defines marriage as “essentially an agreement” between “sovereign selves.” While the agreement between the parties “may take an institutional form,” the marriage itself is a “contractual reality ... defined and created by the individuals who enter into the contract.” And, as with all contracts, the purposes of the marriage grow out of the desires of the contracting parties: in most cases, an increase in their personal happiness.

The third model, the “Postmodern” one, while also rejecting sexual complementarity as the basis for marriage, rejects the off-putting idea of marriage as an agreement for the more palatable one of marriage as a “relationship.” Just as with the “Liberal” model, the relationship “can be institutionalized,” but in this model, what holds a marriage together isn’t a set of a priori beliefs about the nature of marriage; rather, it’s the obligations that grow out of being in a relationship with someone and, as Georgetown Law professor Milton Regan put it, the “web of interdependence” that is created by this interaction with another person.

Apart from some churches, it’s difficult to name a part of Western society where the “Traditional” view of marriage still holds sway. Certainly not in marriage and family law where the “Liberal” model is virtually unchallenged. “No-fault” divorce laws are the near-perfect embodiment of the idea of marriage as an agreement or contract. When one “sovereign self” decides that happiness lies outside the marriage, they are free to leave, subject to a satisfactory division of marital property. The only acknowledgment that someone besides the couple has a stake in what is happening are child-support laws. Even there, it’s not clear who the “someone” is: the child or the taxpayer who might be forced to support the child in the absence of parental support.

The situation outside the courthouse is scarcely better. If you surveyed a representative sample of Americans and other residents of the industrialized world, you would almost certainly find their understanding of marriage is closer to the “Liberal,” and, especially, the “Postmodern” models than to the “Traditional” one. The answer to the question “why do people get married?” would seem so obvious to them -- “because they love each other” -- that they might think it’s a trick question. For most people, marriage is an expression of the shared affection between two people. It is a public celebration of an already-existing relationship between the two.

You see this belief in the increased popularity of writing one’s own vows and in celebrating the wedding in nontraditional places, especially places that figure prominently in what Regan calls the couple’s “shared history.” But even when people get married in a traditional setting, the decision is rooted more in aesthetics than in our beliefs about marriage. White gowns and church weddings are garnish, not the meal. For most people in the West, the public, as distinct from communal, dimension of marriage lies in the financial and legal benefits associated with marriage and the desire for others to celebrate and affirm the relationship.

Which brings us back to Valladolid and Nebraska. If you replace sexual complementarity, procreation and the nurture of children with “mutual obligations” and “interdependence” as the basis for marriage, extending marital rights to same-sex couples isn’t much of a conceptual leap.

Which is why the entire Liberal model needs to be rooted out, starting with divorce.

Posted by Orrin Judd at May 31, 2005 3:49 PM