July 08, 2003
The marrying kind

Several people have responded to my post about privatizing marriage. Eve Tushnet writes:

I worry that Camassia is falling into a stance that I see a lot (and have fallen into myself)--in my debating society it often got tagged as "anarchy or theofascism?" In other words, if you can't legally enforce all of the consequences of your beliefs, you shouldn't legally enforce any of them, because to enforce some and not others would be inconsistent. This stance IMO generally neglects, among other things, the problems of power (some laws against some vices can't be enforced without tempting the enforcers to other vices), and the fact that politics is the art of the possible. I don't think it is inconsistent to support a legal definition of marriage and oppose anti-adultery/-sodomy laws, but even if it were inconsistent, that wouldn't necessarily be a dealbreaker in political life.

I understand why I sounded like that, but I didn't mean it that way. I know the government has to walk a line between being too intrusive, and letting things go wild. I think what frustrates me is that the line currently doesn't seem to be in a rational place, and it's hard to tell from many conservatives' arguments where they would draw it. I get the feeling that because the right has been losing ground in this area, they just reflexively push back without indicating where the proper place to stop is.

A good example of that, actually, is Gary's comment in this post. He answers my question about how much sexual morality the state should legislate this way:

Justice Kennedy was wrong in the Supreme Court's gay marriage decision; the state can (indeed must) legislate some morality to preserve itself. That morality must have some source, some outline that will provide the specifications for what should be prohibited, what should be tolerated, and what should be encouraged.

Religion can fill that role. Philosophies like Marxism and libertarianism have been tried, and failed. They fail because they provide no true underlying set of principles that answer the question "what should the law be?"

He then goes into a long critique of philosophies other than religion as a basis for law. But he never answers what I asked: what is the outline of "some" morality? How much of religious morality should the state legislate and not legislate? And what about nonreligious considerations, like the diversity of American religious beliefs, or enforceability, or privacy?

I haven't read the whole Bible, but it does seem to me that privacy does not emerge as much of a value in it. Some Christians go so far as to say that nothing in church is truly private. But it's not hard to see why extending that to secular society would be a problem. The church is a family; America isn't.

So getting back to Eve's point, I was saying that conservatives have to argue for the line being drawn at a certain point, instead of just saying, "We have to push the other way." If you don't, it's reasonable for liberals to ask, "Where are you going to stop?"

Meanwhile, Lynn echoes the comment her husband made to my original post:

...legal, license-y marriage provides protection for the weaker party in a relationship, so that people don't get used and case aside thoughtlessly. For this reason, the strongest arguments for same-sex marriage, in my eyes, are the kinds of "conservative case for same-sex marriage" arguments advanced by people like Jonathan Rauch and Andrew Sullivan, which talk not just in terms of the rights that would be extended to same-sex couples, but in terms of the responsibilities that would be extended, and the ways in which marriage stabilizes a relationship.

Protecting the weaker party seems to me like a good argument for legal marriage, although I don't know enough about marriage law to know exactly how it works. That's the sort of argument I was looking for, in that it doesn't indirectly enforce sexual morality in a way that has been generally abandoned by the law.

Posted by Camassia at July 08, 2003 05:27 PM | TrackBack

My response to Tushnet's discussion of the idea that if "you can't legally enforce the consequences of all your beliefs, you shouldn't legally enforce any of them" is this:
if a law is either unenforceable, or merely unenforced by convention, then that law should be removed from the books. I think this because such a law will only be used selectively, to persecute individuals who are different (as judged by community standards), vulnerable (because lacking political clout), and disliked (because non-conformist). Such was the case of the application of Texas sodomy laws to two men whose door was kicked in in error, but who were subsequently busted for private, consensual behavior.
Any law that a community agrees to put on the books is just, within the context of that community, so long as it is universally applied to all transgressors.

Posted by: Rob on July 8, 2003 06:35 PM

I wrote about this last week. (See this)

When we analyze what is common to all heterosexual marriages from a legal standpoint it is that it is a right to choose a relative who will have say over matters of life and death for you.

I see no reason why this shouldn't be extended to gay and lesbian couples.

Posted by: Joel on July 8, 2003 06:55 PM

Legal marriage may have, in the past, protected the weaker partner. These days, in my experience and observations, it seems to protect the richer/more aggressive/stronger partner (who, in most cases, ends up with the better lawyer).

I'm not against legal marriage. But I don't think the "protection" aspect is applicable anymore.

Posted by: David on July 9, 2003 05:59 PM

I'm not sure it ever really protected the weaker partner. It used to be a maxim of common law that husband and wife are one and that one is the husband.

Posted by: Aaron Armitage on July 9, 2003 09:28 PM

The weaker partner--come on, let's say it--women. They become more vulnerable in bearing and raising children.

Since homosexual unions cannot produce children, there is no weaker partner. Other legal arrangements can be done to cover the other benefits of marriage: inheritance, property, ownership, health care power of attorney, etc. There are lawyers who specialize in setting up such arrangements. I am not convinced that homosexual marriage is necessary.

Posted by: Elizabeth on July 10, 2003 09:53 AM

Well, really, any relationship can have a weaker partner -- I have yet to encounter one that's perfectly equitable. Apart from the question of children, one partner may be ill, disabled, financially dependent etc. For that matter one partner may be stronger at one point and weaker at another point. But like I said, I clearly don't know enough about the law here.

Posted by: Camassia on July 10, 2003 11:32 AM


As a conservative, let me try to answer the question. I believe that society has instituted marriage to provide for the welfare of children and also that this institution - due to divorce - is not doing its job. Raising children is one job that no society can ignore.

The current (liberal) view is that sex, pregnancy, childbirth, and child rearing are completely separate activities. We've autonomized people to the point where some men just walk away from pregnant girlfriends, after chipping in their share of the cost of an abortion. It is this separated view that makes gay marriage so rational-sounding.

Put another way, instituting gay marriage will create political roadblocks to reforming marriage law. It will not be in their interest, and so it will be considered anti-gay or unworkable. Suppose, for example, that common-law marriages were re-introduced, along with real alimony laws so women have more legal protections. Gays would certainly oppose it. Moreover, a man living with another man, i.e. two heterosexual men sharing an apartment, might very well be considered married if gay marriages are allowed.

What makes gay marriage workable under current law is precisely what makes divorce easy. If divorce were harder, then people might not jump into marriage so casually. Add alimony, property rights and possible repeal no-fault divorce and gays wouldn't want any part of marriage. Throw on common-law marriages and now just two men living together could be considered married, and have to divide their property and couldn't separate unless they could prove mental cruelty. That was the law 50 years ago, when divorces were much rarer than they are today. When I went to school, there were hardly any divorces. I don't think its a coincidence that SAT scores peaked and slid down steadily after the divorce revolution kicked in during the 60s. Self-gratification is now much more important than family and children in American society.

Once we go to gay marriages, we'll never be able to change the marriage laws. We'll have no-fault divorces forever, with all its attendant evils.

Dick Patton

Posted by: Richard Patton on July 16, 2003 04:51 PM
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