The indispensable Jennifer Roback Morse argues that privatizing marriage is impossible. I’m persuaded that she’s right with respect to the position she chooses to debate, but I wonder how she’d argue against (?) a different position, one that required everyone who chose to affiliate with another to enter into a state-defined civil union (which could not be called marriage) and left the definition and solemnization of marriage to churches. This is not the privatization of marriage as she defines it, but it does deprive the advocates of same-sex unions of the ability to use political or judicial power to claim the cultural high ground. It protects those who understand marriage as Roback does from having to concede in the face of those assertions of political or judicial power.
I’m aware of at least some of the arguments against this position. Above all, it could be said to represent a retreat in the high-stakes public argument of the meaning of marriage. If you think that that argument can still be won (which requires more than simply being convinced of the quality of the arguments on the side of “traditional” marriage), then you’d be foolish to retreat in this way.
In addition, you could argue that nothing prevents the advocates of same-sex unions from using political or judicial power to define their preferred position as marriage, once they were able to do so. According to this argument, defenders of traditional marriage may well gain nothing through this form of privatization.
Finally, to the degree that the law represents the cultural high ground, might it not follow from the form of privatization I’ve sketched that “marriage” would eventually lose its cultural heft and that civil union would do the work and bear the social imprimatur that now attaches to marriage? In other words, wouldn’t this proposal at best postpone and at worst ensure the cultural defeat of traditional marriage?
So, dear readers, what do you think?