Robert, one of the most important things about that excellent Charles Capps article you point us to is that it reminds us of the possibility of a stable compromise in the marriage debate. This need not be a war to the death where one side or the other gets everything it wants. Capps is showing the opportunity-seeking mindset we need to find a better way forward.
Capps argues that we should develop separate social institutions to handle two things which heretofore have both been handled by marriage: the social needs of the natural family, and the social needs of groups (whether in a sexual relationship or not) who cohabit and share assets. We seem to be entering a period of history where, in contrast to the previous period, significant numbers of people will cohabit and share assets without forming natural families. Mere justice, Capps argues, demands that we develop social institutions to serve the legitimate needs of these non-familial cohabiters (that’s my term, not Capps’; let’s call them NFCs for lack of something better).
I see three issues that will need to be tackled for this to become a viable way forward. One is that NFCs who are in a sexual relationship may have social needs different from those who are not. I’m not sure this problem is big enough to need to be addressed, but at the least we need to think about it. Sexuality has social consequences other than babies, and one traditional function of marriage has been to channel sexual behavior for legitimate social reasons other than childrearing. Capps argues that one reason redefining marriage to include gay couples fails to do justice to NFCs is that it doesn’t provide for the legitimate social needs of NFCs who are not in a sexual relationship; this is true, but developing a social institution that lumps all NFCs together may fail to provide for all of society’s necessary interests in channeling sexuality.
A bigger issue is what we call the proposed new social institution. The real value of Capps’ idea as a way forward is that it names reality in a new way to accommodate the changing needs of justice. But one of the key sticking points in the marriage debate is that advocates of gay marriage believe that gay people need marriage to participate in society on equal terms as first-class citizens. They don’t want a two-tier system where their unions are a “silver medal” for those who don’t choose the natural family. So this new name for the reality of NFCs cannot be something that suggests it’s a sort of secondary appendage to marriage.
This leads me to what is perhaps the most important issue: how natural families would be treated under the new system Capps is proposing. As I see it, his proposal is a lot more likely to be adopted if it handles all cohabiting and asset-sharing through one institution, which natural families and NFCs would all participate in on the same terms. Then marriage would be an additional institution which, legally, would exist solely to handle the unique needs of childrearing. Of course, outside the legal realm we would continue to view marriage more holistically, as a metaphysical union that expresses the love of Christ and his people; I’m only talking about changing what marriage involves legally. I would not see this as a “redefinition” of marriage, but as a constructive reform that brings our legal arrangements more fully into alignment with the reality of 1) which aspects of marriage must involve the law and which need not, and 2) which aspects of marriage involve the law in ways unique to marriage, as opposed to claims on the law that marriage shares in common with non-marital social needs.
Capps’ proposal may not be likely to resolve our marriage debate in the short term. But it may be the seed of an idea that could grow into a viable social compromise for our children’s time.