“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”

But this is a legalistic argument, so it seems to go back to Lockean arguments which must have superseded more traditional arguments.

This reminds me of Thomas Pangle’s argument in The Spirit of Modern Republicanism in his chapter on the “rational family.” Such ideas of contracts between free and equal human beings somehow become paramount based on the overwhelming influence of Locke–which cannot be denied–but whose work is done through the courts, as well as through predominant modes of discourse in the media and in academia (those who educate the teachers, as Marx would have it).

So we are now suffering through the unintended consequences of the “rational family,” i.e., what to do with those elders who keep on living beyond expectations of mortality, but to whom the younger generation in its claim for free self-determination finds overly burdensome. Has freedom for the youth become slavery for their elders as the youth enter their majority?

Somehow the familial contract was a rational utilitarian calculation that went something as follows (borrowing from an insight of Machiavelli about the solidity of a son calculating his own obligations): the parents would demand certain things from children while they were vulnerable, but once they achieved majority they would be free to pursue their own ambitions. However, children might be rationally disposed to assist elderly parents in their dotage as long as there was an estate to be inherited.

Longevity of life and the immense costs of healthcare in old age seem to call this “rationality” into question.

Your account of the family calls all of this calculus into question too (but on deeper grounds), and I agree with your take. But what to do with the effectual truth that Lockeanism made popular has had on today’s families?

A poignant take on problems of the issue of the “rational family” as it shows itself through generations is Olivier Assayas’s film Summer Hours.

http://www.imdb.com/title/tt0836700/

Two points: With regard to the Court, don’t forget the old “Griswold v. Connecticut” line of argument (ironically) put forward by Justice Douglas about the “sacredness” of the marriage chamber. By focusing on the PLACE where marital action occurs Douglas appealed in a way to the property right notion that “Man’s home is his castle.” The court quickly dumped this appeal in “Eisenstadt v. Baird,” rooting privacy (and access to contraceptives) to a right over one’s own body and person.

Two: Your discusions of Christian Heresy have a very good test case in Jefferson, of course. That’s who I was thinking of when you wrote:
“Locke’s intention is sometimes said to be anti-Christian, but he actually wanted to reform Christianity to tell the whole truth about the free person the early Christians discovered.”