While I’m willing to agree with Michael Barone that at least some of the heat in the culture wars has been turned down a bit (but see this post for a qualification), a lot of interesting things have been said recently about marriage, some of which I noted here.
In the first place, I want to call everyone’s attention to my friend Matt Franck’s nice summary of the exchanges generated by this important article. As he notes, these are serious and civil exchanges that ultimately focus on the question concerning the nature of marriage, rather than simply on name-calling.
At the core of the dispute is whether marriage requires at least the possibility of procreation. For Robert George and his co-authors, it does. For their critics, marriage might well be a significantly more malleable social construct. If they’re right, then we would, I think, have a hard time limiting the definition of marriage on any ground other than arbitrary fiat: marriage would be whatever the majority wants to make it. Or do the critics of George and his co-authors wish to invoke other natural or ontological categories to limit the capacity of the majority to assert whatever it wishes? (I suspect they do: social constructs made by majorities–rather than, say, judges–probably wouldn’t at the moment serve the interests of those who favor same-sex marriage.) They would, of course, have to justify why their particular natural or ontological categories deserve legal recognition and protection, and not those invoked by George and his co-authors.
In the second place, I want to commend to everyone my friend Patrick Deneen’s provocative reflection on what he with some justification regards as lower motives for monogamy and fidelity among our bourgeois and intellectual elite. It’s not about love or children, he argues, but about “picket fenced greed” in adhering to a relationship that has obvious economic benefits. I’m not sure I’d go quite that far, but, then, I’m also not altogether above permitting lower motives to help support higher motives and buttress an essential institution.
But I do think that the less marriage has to do with children, the greater is the salience of the lower motives and the easier it is to think of marriage as just another kind of contractual arrangement among two (and why not more?) individuals.
Finally, I would be remiss not to note my friend Jonah Goldberg’s contribution to the discussion. He’s probably right that the bourgeoisification of the gay rights movement is an improvement over its much more countercultural predecessors, but I’m perhaps more worried than he is about the implications of the Buegerlichkeit inherent in the embrace of same-sex marriage. Goldberg’s HoBos may not be too different from David Brooks’s (and Deneen’s) BoBos, as both may favor long-term stable relationships for non-procreative reasons (reasons more selfish than not). Both, however, pose something of a threat to an understanding of a union that is higher than those who make it.
December 30th, 2010 | 6:52 pm
Following George, a lot of people are getting tripped up over the definition of “marriage,” thinking that we should settle all the substantive policy questions by discovering some authoritative definition. Some even voice the fear that if no such authoritative definition is discovered to settle our policy questions then the institution faces some kind of grave threat.
I suspect that these sorts of errors require more therapy than counter-argument. But it may help everyone to think about another marriage-related policy question: what should the state regard as the minimum marriageable age?
In considering this marriage question, is it really plausible to think that the policy issue can or should be decided by discovering some authoritative definition of “marriage” within which the minimum age is specified? If it can’t be decided on the basis of discovered definition, then how is it that we go about deciding such things? Is it really left to “arbitrary fiat”, unconstrained by other norms and values? Is that really the only alternative? Does some similar slippery slope threaten?
Those who fixate on definitions ought to reflect upon these questions.
December 30th, 2010 | 9:21 pm
JGY, I’m not sure I see your point. Setting an age limit has to do with requiring informed consent–the question is at what age can a person be assumed to be capable of such a thing. It doesn’t turn on the question of what marriage is.
December 30th, 2010 | 11:03 pm
It’s important to recognize that the state’s legitimate interests in marriage differ substantially from those of the Church. The former has a legal and social interest, the latter a spiritual and sacramental one. These two are bound to be in conflict from time to time, though, until recently, they were in general accord on most basic principles.
The state used to promote traditional marriage because (a) it allowed for the orderly organization of society, (b) the regular transfer of property; and (c) provided a stable environment for the raising of children. For a variety of reasons, the state seems to have gone insane lately, but I expect this to change as the practical consequences of the ongoing social experiment in “alternative lifestyle choices” come home to roost. These, combined with the pending implosion of the social welfare state (whose costs are simply unsustainable given present demographic and economic trends) mean that more conventional social mores will reassert themselves–as, indeed, seems to be the case: what we see today is not the breaking wave of some future trend, but the last gasp of an exhausted (physically, spiritually and intellectually) generation on the brink of oblivion.
However, transitions from one era to the next tend to be prolonged and messy; for its own good, the Church should recognize that its interests and those of the state do not at this time coincide, which means the Church must take steps to protect its own doctrine and its fundamental role as witnesses to the Kingdom of God, until Christ should come again. And that, in turn, probably means disentangling itself from existing Church-state arrangements whereby the former acts as a deputed agent of the latter, for in so doing, the Church places itself at the mercy of the state.
With regard to marriage, this means the Church should stop executing marriage licenses as de facto magistrates (“By the power vested in my by the State of N.___”), insisting that people who wish to be married legally should first go to a civil magistrate, while those who wish to be married sacramentally must submit to the demands of the Church.
December 30th, 2010 | 11:04 pm
I should also have mentioned that economic liberty is the foundation of religious liberty, so that anything which also disentangles the state from the economy–and thus from an intrusive role in our private lives–also serves to protect our freedom of conscience.
December 30th, 2010 | 11:44 pm
Tristian, you believe that the issue has to do with informed consent. But suppose that another person insists it has simply to do with reproductive maturity, or with biblical precedent, or tradition, or with divine decree. How do you go about making your case? By definition? Of what? From where? Or, suppose everyone agrees that it does have to do with informed consent. How exactly does this resolve the issue? Where does what go from there? Are we here supposed to discover some definition?
These issues are bound to be tricky. But, as you suggest, it’s implausible that we should try to settle these issues by first discovering authoritative definitions–and certainly not any definition of “marriage.” Does this mean that some slippery slope threatens? Lacking the ability to first discover authoritative definitions to settle all these tricky matters, is it just a matter of “arbitrary fiat”?
December 31st, 2010 | 1:12 am
[...] Family Matters – Joseph Knippenberg, First Thoughts [...]
December 31st, 2010 | 3:49 am
Age has nothing to do with the definition of marriage, which, until a few years ago, needed no definition: the legal union of a man and a woman for the purpose of licit conjugal relations. That’s de minimus. From there, you can elaborate into all sorts of things, but this has been the definition of marriage across all times and cultures.
December 31st, 2010 | 6:48 am
The big problem I have with “marriage as social construct” is that marriage is an institution that is still serving useful and important functions that are not compatible with gay marriage.
For example: marriage protects women from exploitation. Recent history has demonstrated that women are vulnerable when it comes to reproduction – and without an institutional support, will be taken advantage of, used and discarded, and that’s not good for the woman, the child, or the community. Whereas I notice gay marriage encourages rather than discourages the idea that the mother of one’s child is a something to be used and then forgotten about.
Also, marriage acts as a powerful social signal enabling men to signal their intention to start a family, and their choice of a bride. This protects men from entrapment and other forms of game-playing. What might be more important is that it protects the child – because even today, a paternal family is less likely to allow resources to flow to an illegitimate child than to one who is a full member of the family. That lack of a wedding band is a powerful indicator that something went wrong between the child’s mother and father.
And this might be the most important reason for marriage: the reality that resources do flow along kinship lines – not only financial but social and emotional resources. And gay marriage is built on forcing us all to pretend that families aren’t built out of kinship, but can consist of any group of people who feel “affection” for each other or who “choose” to belong to each other. The problem with that, of course, is that it is unstable, and the people who behave irresponsibly are not necessarily the same people who are going to be the ones suffering the consequences.
We tie obligations to kinship roles, rather than to roles based on affection, for just this reason – because kinship roles are stable, precisely because they are not based on “choice”.
Family trees have a weak spot: the point where affection rather than biological ties enters into the family picture. We all have to go outside our biological family to choose a mate to bear children with, and this act entails risks that can destroy a family. This is why marriage continues to be important today – because it is an institution that was created or evolved (as you believe) to provide supports that stabilize that weak point in an otherwise-stable structure.
December 31st, 2010 | 6:57 am
‘In considering this marriage question, is it really plausible to think that the policy issue can or should be decided by discovering some authoritative definition of “marriage” within which the minimum age is specified?’
To think, all this time I thought you were merely gay. Turns out you’re really agitating on behalf of NAMBLA.
December 31st, 2010 | 8:13 am
JGY is right in his suspicion of definitions. There is no commoner fallacy in logic than confusing a definition, which merely assigns an arbitrary value to a sign and a proposition, which can be true or false.
Stuart Koehl’s suggestion of purely religious marriages has much to commend it, but would require the abolition of mandatory civil marriage, seen by many as a pillar of laïcité (Article 433-21 of the Code pénal) of 1804, which has found its way into the legislation of most European countries.
A more hopeful approach, in my submission, is that of Carbonnnier, who famously asked “What is the state’s interest in marriage? Why does marriage exist, as a legal institution What is the unique legal rôle of marriage?”
Carbonnier’s analysis had to address the differences between the two legal régimes of marriage on the one hand and civil unions (PACS) for same-sex and opposite-sex couples on the other (as well as unregulated cohabitation) and to extract a principle from them.
His conclusion: “The heart of marriage is not the couple, but the presumption of paternity.” This is based on Article 312 of the Code Civil: « L’enfant conçu ou né pendant le mariage a pour père le mari.» (“The child conceived or born during the marriage has the husband for father”)
To summarise his conclusions: (1) Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation..
In other words, the institution of marriage entails consequences with respect to filiation that the other forms of union do not. Moreover, this leading jurist could find no other significant difference at all, in the laws governing cohabitation and civil unions on the one hand and marriage on the other, that does not logically derive from this presumption and no-one, to my knowledge, has been able to suggest an alternative reading of the legal texts themselves. Indeed, it was ratified by the French Senate in its proposals on the law of 4 July 2005 – “The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children. The report presenting the order to the President of the Republic rightly points out that ” it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value.””
December 31st, 2010 | 10:47 am
We have a truce on the social issues? Michael Barone is usually an acute observer. I don’t know how he could miss the fact that we’ve just decided that homosexuals can serve openly in the military. It was in all the papers. Some truce. I guess by truce he must be usuing the liberal definition, under which the left can push whatever crackpot notions it invents, and the right doesn’t resist. I call this surrender rather than truce.
December 31st, 2010 | 11:18 am
“Stuart Koehl’s suggestion of purely religious marriages has much to commend it, but would require the abolition of mandatory civil marriage, seen by many as a pillar of laïcité (Article 433-21 of the Code pénal) of 1804, which has found its way into the legislation of most European countries.”
This misreads my statement by 180°. All those who wish to marry in the eyes of the law would have to obtain a civil marriage from a state magistrate. Those who further wish to marry sacramentally in the Church would then have to apply to the Church and meet its criteria for marriage. Conversely, those who wish to marry in the eyes of the Church but not in the eyes of the law would have that option as well. This might prove advantageous from a financial perspective if, e.g., the tax code reverts to penalizing marriage, or if pension benefits are lower for married couples vs. single people. On the other hand, people sacramentally but not legally married would lack the protections that extend to the partners in a legal marriage. Nonetheless, both are viable options.
December 31st, 2010 | 11:25 am
“JGY is right in his suspicion of definitions. There is no commoner fallacy in logic than confusing a definition, which merely assigns an arbitrary value to a sign and a proposition, which can be true or false.”
I disagree. There actually is no need for a definition of marriage, since the meaning of the term is universally understood. JGY and others who wish to redefine marriage as something other than what was universally understood for millennia have the burden of proof upon themselves, both to show the need for a new understanding, and how their proposed definition would work out in practice. Consistently, they refuse to do this.
Moreover, they consistently refuse to answer a simple challenge I have repeatedly put forward: to identify one civilization in human history in which marriage was not understood to be a legal union of a man and a woman.
Certainly, there are civilizations where a man can be legally united to more than one woman; and a few where a woman can be united to more than one man; but there has never been a society in history that recognized the union of two people of the same sex as “marriage”. Even societies that were tolerant of homosexual relations reserved the term “marriage” for legal unions of a man and a woman.
For that reason, we can and should presume that marriage is not a social construct, but an inherent aspect of human nature, found everywhere and at all times, an “organic institution” that achieved its universality and longevity because it meets a universal and perpetual human need. One does not meddle with the fundamental nature of such things without incurring serious consequences, the worst of which are usually unintended.
December 31st, 2010 | 12:18 pm
JGY etal, The alternative to definition would seem to be no definition and I believe that we are well on our way to that. Beyond the issue of age the criteria for what constitutes marriage has entered a phase of deconstruction.
For a long time I heard much about the financial benefits that accrue to marriage and a lot of attention was paid to this apparent unfairness. Those in favor of homosexual marriage made much of this disparity and listening one could think that their interest was simply the attainment of equal access to these benefits irrespective of why they had accrued as they did. As it happens most of the perceived benefits were after the fact of marriage and not why it occurred. So their efforts actually flipped marriage from what it was commonly understood to be to just another economic strategy and in the process excavated the substance of the joining.
Lately though, while not having gone away, these concerns have taken a back seat to the unrequitted love and due process tactics, understood by most as fairness. I am afraid that a pandoras box has been opened. If marriage is not now understood as it has always been understood then how will it be understood. We have effectively voided the procreative element and replaced it with unrepresentative pictures of happy gay couples with their children, talk about a beard, a situation that I would bet fits nowhere in the intentions of most homosexuals. More to my point, when two people apply to be married is there a test for the gayness of the applicants. Of course not, therefor any two people can get married for any reason, with a few exceptions, or no reason. At this point we have effectively voided any definition of marriage that would pass the smell test. Marriage will be reduced to what many young people since the 60s have characterized it as, a piece of paper.
December 31st, 2010 | 5:25 pm
The general way in which Deeply Concerned frames debate over the SSM question is far better than the specious appeals to discovered definitions buoyed up by all the hot air about “arbitrary fiat” and slippery slopes. That is, we should focus on what is valuable about the institution, and about the sorts of interests that are at stake. Following Deeply Concerned’s example, we should describe these values and concerns in terms that everyone else can be reasonably expected to accept—whether or not these others happen to share our particular ideological views, or our peculiar opinions about how marriage ought to be defined (or, for that matter, our observations about how ancient and widespread a particular tradition of marriage happens to be, as Mr. Koehl keeps irrelevantly insisting).
Among these concerns (the concerns that need to be included in our deliberations about SSM) we should of course include the casualties of tradition, and of harms done both to families and to individuals by the traditionalists’ demand that gays and lesbians must marry heterosexually, if they are to marry at all. We should include what meaning the state’s enforcement of the traditionalists’ demand would express towards gays and lesbians. When conservative heterosexuals consider the values on behalf of which they intend to deny the ability to marry to gays and lesbians, they should carefully reflect on all the ways in which the ability to marry is valuable to themselves, and within their own lives. As with the considerations Deeply Concerned has raised, the harms created and sustained by the traditionalists’ demands are often quite indirect and subtle. We therefore need to be thoughtful, well-read, and ready to listen—especially to those whose lives are most directly impacted by our legislation. We should ready to carefully listen to those in gay and lesbian community, trying, as best we can, to place ourselves in their shoes.
December 31st, 2010 | 6:27 pm
“(or, for that matter, our observations about how ancient and widespread a particular tradition of marriage happens to be, as Mr. Koehl keeps irrelevantly insisting).”
I did not say a “particular tradition” of marriage was “widespread”, I said that the concept of marriage as a union of a man and a woman is UNIVERSAL, as JGY very relevantly keeps avoiding.
So, I will ask my question, once more, to JGY: in what specific culture, in any time or any place, was marriage every conceived as embracing the legal union of two persons of the same sex? Be specific, please.
If unable to answer, please just shut up.
December 31st, 2010 | 9:14 pm
I’m moved to wonder how we ever survived here without Stuart Koehl’s pompous and pedantic tutorials!
December 31st, 2010 | 9:15 pm
JGY, I have nothing against gay unions, but to suggest that a “gay marriage” is the same as a straight one.
Gays do not make children as a couple. They look outside of the marriage for their children.
If gay marriage is to become law, we are going to have to revive anti-adultery laws, because both individuals and societies have an interest in preventing gays from misusing the benefits of marriage to fraudulently claim paternity of children they are not actually related to.
All 50 states recognize that a child has a right to a relationship with both his or her natural father and natural mother. Only a judge can sever this tie, and then only when it is in the best interests of the child. This law was originally designed to facilitate legitimate adoptions, but is being used now to facilitate situations where one parent knows before the act of creating a baby, that the intention is and will be (from the start) to relinquish this child. This needs to be labeled for what it is: the selling of human flesh, a transaction that is not only NOT motivated by the best interests of the child, but in fact sacrifices the best interest of the child, to accommodate those who wish to buy a parenting experience.
Gay marriage is not the same in kind, and there is no way to make it so without requiring lies – not least of which the lie that comes from forcing a child to pretend there is no loss involved in being motherless or fatherless. All motherless or fatherless children deserve the right to grieve their loss, but gay marriage requires the child to pretend there is no loss to grieve.
Gays are not under any circumstances required to enter into heterosexual unions under false pretenses.
December 31st, 2010 | 9:28 pm
Excuse me, I meant to say, “to suggest that “gay marriage” is the same as a straight one is simply not true.”
By which I meant to convey this: to pretend there is such a thing as “gay marriage” is to use the power of the state to force people to lie, because the two unions are not the same in kind.
It is already quite settled that we will allow a certain amount of misrepresentation when it is done in the interests of finding a home for an orphaned or abandoned child.
What is now at stake is the question of whether grown-ups can engage in – and expand the parent’s right to – these sorts of misrepresentations when their reasons have nothing to do with doing what is best for a child in crisis.
January 1st, 2011 | 2:31 am
What is often overlooked is that there is the potential for a tremendous social cost to the expansion of the definition of marriage. Consider the arguments made here (http://counterpoint.uchicago.edu/SSRationalF10.html). Altering the social incentive structure of marriage, which decoupling it from procreation would, will almost necessarily alter the social desirability of marriage, which in turn can only further weaken traditional marriages, many of which are held together only by this social pressure.
January 1st, 2011 | 7:46 am
“I’m moved to wonder how we ever survived here without Stuart Koehl’s pompous and pedantic tutorials!”
Me, too. But are you able to answer my question, that’s the important thing?
January 1st, 2011 | 12:03 pm
@Stuart Koehl: thanks for your tutorials. Keep them coming.
My father used to laugh at the wording of the priest’s pronouncement at his wedding: “By the power vested in me by God and the State of New York…”. I think the church will be out of the marriage license business in an effort to protect itself.
I also think our grand experiment in broadening the definition of marriage (thus weakening the institution itself) will prove too expensive to society. Then the scales will fall from the eyes of those who now wonder what the state interest in marriage is, and has been, all along.
January 1st, 2011 | 6:16 pm
Deeply Concerned, I find your recent comment difficult to understand.
Help me understand your worry here. Is the fear that married same sex couples will suddenly be overly tempted to adulterously impregnate women? Are you worried that this will be the widespread consequence of allowing gay marriage, as opposed to mere “gay unions” that otherwise carry the same legal status as marriage? Why? Is the same consequence currently a harmful effect of the present laws under which we allow infertile couples to marry? Why not?
I’m unfamiliar with the relevant state laws here. When a parent gives a child up for adoption, how exactly do the states enforce this putative right of the child’s? Why must it necessarily be different in your feared hypothetical scenario?
You mention other concerns about gay marriage “requiring lies” and “forcing a child to pretend,” but these worries seem to rely on your previous ones, which, as I say, I don’t quite follow.
I suspect that your concern about using the power of the state to “force people to lie” may be a bit overblown. Consider a potentially analogous case. Some people believe that a certain tax (passed through the normal democratic processes) wrongfully takes what belongs to them. For these people, does this tax “force them to lie” about who owns what? If so, is this a compelling reason not to tax them? Why or why not?
January 2nd, 2011 | 4:55 am
Stuart Koehl and AB
On the question of purely religious “marriages,” you overlook the fact that, in most jurisdictions, it is a criminal offence for a minister of religion to conduct a marriage ceremony for a couple not legally married to each other – Article 433-21 of the Code penal classifies it as an attack on the civil status of persons and a crime against the authority of the Nation. This shows, incidentally, the importance the State attaches to the institution of marriage.
Deeply Concerned
You are right that the questions of same-sex marriage, adoption and assisted reproduction must be addressed together; at present, Article 1128 of the Civil Code provides that only things in commerce may be the subject of a transaction. Jurisprudence has confirmed that neither a human being, nor human genetic material are “things in commerce,” which can be the subject of a legal agreement. There are also the provisions of the Penal code that forbid assisted fertility, except as treatment for a “pathological condition.” Do the supporters of SSM suggest that this provision should be modified? I have already mentioned Article 312 (Presumption of paternity) What other changes in the law will be necessary to meet their wishes?
January 2nd, 2011 | 2:17 pm
JGY, I made my concern quite clear. What don’t you understand?
Gays look outside of marriage for their children, so it’s not clear why they should be granted the procreative benefits of marriage, instead of being expected to share those benefits with the person they’re actually procreating with.
As another poster so aptly pointed out, the presumption of paternity is at the heart of marriage.
If gays are going to be granted the right to be presumed the father of their spouse’s child, then we need to make sure that laws are in place that punishes the misuse of those benefits – because there is no right, under the law, to be presumed the father of a child that isn’t yours.
Rights and responsibilities go together. With the right to be presumed the father of a child comes the obligation to not use that right fraudulently.
January 3rd, 2011 | 4:28 am
Deeply Concerned is right about filiation. Both Belgium and the Netherlands, whilst permitting same-sex marriage, have removed the presumption of paternity in their case: some jurists see this as conceding the name of marriage, without the juridical substance. Spain and Canada, on the other hand, in the name of simplicity and uniformity (admirable in themselves) have retained the presumption, but modified it, by making it contestable, thus weakening all marriages
No-one will deny that the state has a clear interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and to the orderly succession to property. To date, no better means have been found for ensuring, as far as possible, that the legal, biological and social realities of parenthood coincide. And that is no small thing.
January 3rd, 2011 | 6:36 pm
“At the core of the dispute is whether marriage requires at least the possibility of procreation.”
I think this is imprecise. Gergis/George/Anderson don’t argue this.
Links
Blogs
Find Us
Contact