The debate about same-sex marriage brings the modern liberal project to a point of clarity. If marriage can be reshaped to accommodate same-sex couples, then there is nothing that the modern liberal state cannot redefine to serve its own purposes.
A few weeks ago, Sherif Girgis, Robert P. George, and Ryan T. Anderson published an important article in the Harvard Journal of Law and Public Policy defending the traditional view of marriage: “What is Marriage?” The article stirred up responses from some law professors. After all, one key assumption of liberal jurisprudence in this area is that there can be no rational basis for resisting the efforts to redefine marriage to encompass same-sex relationships. By this way of thinking, the traditional view of marriage simply reflects old prejudices and outdated historical practices.
At Public Discourse, the web journal run by the Witherspoon Institute, Girgis, George, and Anderson have posted a series of replies to criticisms, the most interesting of which came from the Northwestern law professor Andrew Koppleman.
Here’s the way Girgis, George, and Anderson put the thrust of Koppleman’s disagreement: “Against our view that marriage is a pre-political form of relationship (albeit one that the state has compelling reasons to support and regulate), Koppelman holds that marriage is merely a social and legal construction—the pure product of conventions.”
Whatever one thinks of the morality of homosexual acts or the role of same-sex relationships in society, this contrast strikes me as telling. Most who defend traditional marriage hold that our body of law should recognize the reality of marriage, while liberals tend to take the view that our legal system creates the institution of marriage, and therefore can reshape and recreate it as the democratic majority (or in this case a judicially empowered minority) sees fit.
In this distinction between recognizing and creating we can see the fundamental metaphysical question at stake in the same-sex marriage debate. Are there any stable and authoritative social realities—such as marriage—prior to or more fundamental than the legal artifacts created by the modern liberal state? Or is the Leviathan of the modern state the singular source of social reality?
Rousseau had a gift for bold theoretical reflections. He recognized that the modern notion of equality, if made substantive, would require absorbing social reality into two distinct and interrelated domains—the individual will of each citizen and the collective will of society as a whole. This way of thinking has led to the two-source theory of legitimacy that predominates in modern liberalism: Social realities merit respect and recognition if and only if they are based on either the individual will or the will of the majority as reflected in the decisions of a democratic state.
The result of this two-source theory has been the slow erosion of the independent legitimacy of social institutions that fall in between the individual and the state. As Rousseau recognized, inherited social forms inevitably mediate between the individual and the collective by differentiating between individuals and assigning to us a variety of roles. Some are tinkers, others tailors, and still others candlestick makers. Some are priests, others laymen. Some are professors, others students. Moreover, a single person plays many roles. I’m father to my children, but not the neighborhood kids, and so forth.
All these differentiated roles create a variegated system, which of its nature is defined by inequalities. I don’t treat my children the same way as I treat other children, nor do I relate to my colleagues in the same fashion as to my students.
The inherent inequalities in this differentiated system of social roles has always troubled modern liberalism. As a result, liberalism has tended to redefine our social roles in terms of either individual choices that are protected by the modern state by way of civil rights, or as patterns of behavior mandated by the democratic process—taxation, military conscription, criminal and regulatory laws, and so forth. The two sources of legitimacy take over, and we’re left with a realm of individual choices and the political domain of government-enforced social cooperation.
At least since Edmund Burke, modern political theorists have expressed reservations about the impoverishing consequences of liberal two-source theory. Alexis de Tocqueville thought that a genuinely liberal society needs mediating institutions, which is to say social realities not reducible downward to individual choice or upward to political power, for these mediating institutions fend off the absorptive tendencies of the isolated ego and the all-powerful state. They allow us to enjoy forms of solidarity that are not political in the narrow sense of being creations of the state, and therefore subject to democratic contest and debate.
I am opposed to same-sex marriage for moral and theological reasons, some of which Girgis, George, and Anderson spell out in their defense of traditional marriage. But my opposition also stems from the modern conservative insight into the importance of mediating institutions for sustaining a liberal society (in contradistinction to a liberal theory, which can’t do the job).
Freedom does not entail doing as we please—a fantasy we can never realize. Political or social freedom means having opportunities for consequential personal decisions that allow us to define our lives in some significant way, not on our own terms—another fantasy—but in terms of truths greater than ourselves. For this to happen we need a complex array of authorities, institutions, practices, and forms of life that we do not create but instead recognize, weigh, balance, and decide between.
This finite freedom—the only kind we can have—is threatened by the liberal, two-source theory of legitimacy, for such a view empowers the sovereign will of the individual and its would-be servant, the all-powerful modern state. We imagine that we can create the defining contours of our lives, in this case redefining marriage to make it a more plastic instrument for individuals to use as they see fit. This fantasy undermines the social conditions for achieving a genuine self-possession, which requires navigating amidst lasting truths that we cannot create but must recognize.
Here we see the historical pattern of liberalism. Modern liberalism has refused to recognize many dimensions of traditional society: old guild prerogatives, inherited social castes, racial segregation, and so forth. In each case, liberalism has used the power of the state to create new conditions for human beings to enter into economic and social relationships according to their own desires rather than being governed by pre-established social categories and roles. In each case, liberalism has argued that the old patterns were never properly authoritative, but were instead unjust mechanisms for one group to dominate another group.
Some of these liberal refusals to recognize inherited forms of life and the determined efforts to use to power of the state create anew have undoubtedly been for the best. But the modern conservative has always wondered: When will it stop?
Burke worried never. The same-sex marriage debate suggests that he was right. Of course the practice of marriage has varied a great deal throughout human history. But the union of men and women for the purposes of forming a family unit—which is to say the traditional institution of marriage in all its variety—stands alongside religious forms of solidarity as the most fundamental and primeval mode of social organization available to the human species. If, as Koppleman and other liberal legal theorists forthrightly affirm, the modern liberal state can do with this fundamental institution as it wishes, then it seems to me that there is nothing the modern liberal state cannot redefine, reshape, or reinvent.
Creating and never recognizing—it’s a vision of political life that fills me with foreboding. After all, the human person, like the institution of marriage, is (thank God) pre-political, to be respected not remolded, recognized rather than subjected to redefinition.
But just as liberal theory so easily takes up and refashions marriage, I fear that an imperial liberalism will soon be underwriting a redefinition of parenthood and reproduction—the very origins of the human person and thus the inner fabric of our humanity. Not a happy future.
R.R. Reno is a senior editor of First Things and Professor of Theology at Creighton University. He is the general editor of the Brazos Theological Commentary on the Bible and author of the volume on Genesis. His previous “On the Square” articles can be found here.
Girgis, Anderson, and George. “What Is Marriage?” Harvard Journal of Law and Public Policy.
Andrew Koppelman. “What Marriage Isn’t” Balkinization
Girgis, Anderson, and George. “Marriage: Merely a Social Construct?” Public Discourse