What is the Public Interest in Marriage? A Plea for Tolerance
It seems as though I have struck a responsive chord when I spoke in unqualified terms about the libertarian position that requires, in my view, a parity in the eyes of the state of all forms of union under the rubric of marriage. Under the provocative rubric of Beating a Dead Gay Horse, the comments have come thick and fast. The common thread to the responses is that there is a vast difference between private intimate relationships that ordinary individuals have with each other, and with the official or public recognition of these relationships under the term marriage. The argument is that it is not bigotry or worse to allow ordinary individuals to behave as they want in private and to reserve the public symbols of marriage for the traditional heterosexual couples.
I think that this position has resonance as a matter of American constitutional law, but not as a matter of moral or political theory. Let me explain the difference.
On the constitutional side, I think that the case for the recognition of gay marriage against the will of the people as expressed through their legislature is very weak, and I have said so in so many words on numerous occasions. The history of the “police power” in the United States made it very clear that states had a broad power to regulate on matters of morals, and that this included determining not only how marriage could be performed, but who was eligible to be married. I do not think on this particular that the US constitution was a libertarian doctrine, and as a matter of sound constitutional interpretation, I do not think that it should be twisted in ways that make it stand for a set of beliefs that libertarians, or progressives, or both combined, think to be desirable as a matter of social policy.
Indeed, I will go one step further to say that in the distribution of public benefits raised from tax dollars, the government cannot, as all too many today wish to do, insist that those groups who support traditional marriage, or who refuse to serve gay or unmarried couples should, should not be allowed to participate in those programs. That is a form of tyranny of the new beliefs against the old. The basic point here is that each group should be in a position to have the same share of public revenues as any others. So long as they are required to put in their fair share, they should be allowed to take out their fair share.
But the position that I took on the podcast with John Yoo did not make a constitutional argument; nor was it about the distribution of public benefits. Rather, it was an argument that the state has no business in interfering with private relationships, or in deciding which of those relationships are superior to the other. In this particular instance, it is a mistake to think of the public as though it was some monolithic or unitary being that has a single coherent view on any issue. Rather the public can only be understood as a composite of a set of private views on subjects that are often in tension with each other, which is why we never demand unanimity as a precondition for collective action.
For many years there was a strong enough consensus that marriage should only be defined as a union between one man and one woman, and that view prevailed as a matter of law. Today, that vision is contested by people who, for a variety reasons, do not think that this vision is the proper one. Those people who take this view are part of the public just as much as those who think the opposite. To be sure, they are taking on a set of traditions rather than affirming them. It may well be that one should move with caution in upsetting those traditions. But it hardly follows that a state should never move in that direction at all. Once there is a shift in position that prevails in ways that allow for the enactment of a new law, the official position changes. It is always uneasy for those whose views lined up with the old order to accept the change. But there is nothing whatsoever that says that because the public spoke in their favor at one time it has to speak in their favor going forward.
Indeed on the matter of public sentiment, the shift in mood, especially among the young has been quite rapid, and in New York it is quite likely that gay marriage will come to be accepted, as it should be. The objections to the current bills are those which should be accepted in principle. The state should not require those who do not accept gay marriage to recognize it in the operation of their own affairs. What is required now is a sense of tolerance toward actions of which one disapproves. And that principle of toleration is an engine that is necessary in my view to the preservation of civic peace. All of us have to live with the unhappy realization that none of us have the control over public symbols, and all must accord respect to the rights of those whose views they find unacceptable or worse.
My hope is that New York will pass its statute. Once it is passed, I don’t think that we should give undue weight to the fear that some “ominous social consequences” will follow. Quite the opposite, if the tension is released, and people get on with their own lives, we can put an end to the divisive dialogue that has produced little light but much heat. There is no reason for this nation to insist that it have a single collective vision of what is the right form of marriage. Once there is a deep cleavage, the best thing to do perhaps is to say that there is no longer anything other than civil unions for all individuals. The question of marriage becomes one for churches and other groups to decide for themselves. There can then be competition for the popular allegiance in a way that can avoid much of the legislative conflict that has been our unhappy lot now that the state insists on exerting monopoly control over the ceremony of marriage.
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Re: What is the Public Interest in Marriage? A Plea for Tolerance
America is one of the few nations to treat Gays with such high regard that we maintain laws protecting them from marriage.
Jul '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
This has to be the most depressing post I've yet read on Ricochet.
Maybe the Islamists are right about us after all. If we in the West have entirely lost the ability, or even the will, to distinguish morality from immorality, maybe we don't deserve to have a civilization.
Dec '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
"The question of marriage becomes one for churches and other groups to decide for themselves."
As was the case before government got so involved in it and made marriage a vehicle by which rights and/or privileges are dispensed by the state for people who took upon themselves the trappings of participating in the real social good of marriage and intact families. As one who supports traditional marriage, your arguments from the libertarian perspective are compelling if not convincing but not for the reasons stated. Society has all but given up on the concept of the intact family being a real social good. Once that is complete (even in the face of undeniable evidence to the contrary), then the preservation of traditional marriage becomes nothing more than a symbol entirely devoid of meaning. If we maintain traditional marriage in hopes of preserving the real social good of intact families we will fail as a society. If we reinvigorate our understanding and support of intact families as the superior method by which society reproduces itself, then support of traditional marriage will naturally follow because traditional marriage is the only way yet discovered to keep men and women committed to the endeavor.
Sep '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Good grief, Peter Christofferson. How are you so sure of what immorality is in the public sense? His disciples didn't get Jesus; how come you're so sure you do? (Yes, I'm assuming your problem with Epstein's post is religious in nature). Jesus never said a word about homosexuality but raged definitively against divorce, yet religious people rarely take up that public mantle, which is a far greater assault against marriage than is the push for so-called gay marriage. Yes, I'm gay, but I happen not to care a whit about gay marriage; I think it's mostly a middle-class, neurotic seeking of approval from strangers and not a desire for commitment in the traditional sense. Thus, I'm for civil unions, not marriage for gays. But man oh man, posts like yours obscure the public/private divide every bit as much as the rantings of gay activists.
Peter Christofferson:
Maybe the Islamists are right about us after all. If we in the West have entirely lost the ability, or even the will, to distinguish morality from immorality, maybe we don't deserve to have a civilization. · Jun 19 at 7:41am
May '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
There is absolutely no public interest in marriage, if we define public as government. I don't look to government to define marriage one way or the other. The Church defines it, and I internalize it. The government position should have no effect whatsoever on real marriages.
It is the single least significant issue in politics, and somehow takes up a lot of resources. Those who seek to defend traditional marriage are looking for validation, those who seek gay marriage are seeking, well, validation. By government fiat. None of this is real. Why should anyone care?
Why do I care? Because it distorts voting patterns, and gets people emotionally on the wrong side of things, and is therefore exhausting and frustrating. Just legalize it already if that's what it takes to defuse the issue. It won't hurt anyone's actual functioning marriage to do so, nor should we worry that people will look to the government for moral sanction.
Geez Louise.
Nov '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Leslie Watkins: Jesus never said a word about homosexuality but raged definitively against divorce,
Jun 19 at 8:08am
While the 20th century word is not found in the New Testament, implicit in Christ's teaching on divorce is affirmation of traditional marriage because His reference was back to Adam and Eve: "From the being it was not so...". "A man shall leave his father and mother and cleave to his wife." Nothing else is contemplated.
Be that as it may, I am in general agreement with Richard's libertarian sentiments on the subject. As Richard says, looking for constitutional grounds to permit homosexual unions is pointless. 18th century social morays viewed sodomy (what they called it) as evil and no such unions were countenanced. If you were able to ask the founding fathers if they had homosexual unions in mind when they wrote the constitution they would have looked at you with great perplexity.
Edited on Jun 19, 2011 at 8:34amApr '11
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Richard, as is his per usual, is right on with the morality issue. Peter Christofferson's position, above, is simply ridiculous in every way, should be ostracized and has no place in Ricochet.
Re: What is the Public Interest in Marriage? A Plea for Tolerance
I agree with Richard, and might even take it a step further. I don't think the government has any business recognizing my marriage to my wife. Why the heck did I have to pony up $35 for a license to them to marry my wife? What business is it of government?
If divorce were difficult to get and alienation of affection was still a tort in every state, then I might buy the idea that people believe government has an interest in maintaining marriage. It's been so watered down by people and government that anyone making that argument is blowing some outrageously hypocritical smoke.
For people who are supposed to be skeptical of government power, it always amazes me that Conservatives wish to cede them power over what is arguably our main pursuit of happiness.
I'd settle for a simple reporting requirement. I understand that the government will have to be called upon to settle disputes over property after divorce, so make people report their marriages.
Other than that, I don't need the government, progressives, conservatives libertarians, gays, the man on the moon or anyone else recognizing my marriage.
It's my sacrament. Mind your business.
May '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
That's a bit strong. I disagree with his position, but wow. There are many conservatives who agree with it. And we'll all pull the same lever in November.
Nov '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Peter's position is not ridiculous. He merely views homosexuality as a social evil that needs to be suppressed as any other social evil. Less than 50 years ago (maybe less), Peter's position was the majority position. Not so today when the interrelation between politics and Christianity in this country is very much weakened. Not that the USA ever was a truly "Christian" country.
May '11
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Eric,
I feel Leslie's response was an appropriate response to Peter's opinion but yours was over the top. I'm glad there is a place for expression of moral opinion on ricochet. Dissenting commentary is more effective when it is not personal. That's just my opinion, don't take it personally.
Richard, thank you for a well reasoned analysis of a complex issue.
Jan '11
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Libertarians present the government as demanding that relationships be recognized by the state. That's a serious misrepresentation.
If you want to live with someone, go right ahead. You want to cohabitate with sheep, have fun. You want to live with five other gays, that's your choice. No one is stopping you.
But whereas society isn't trying to dictate your relationships, it does promote, encourage, and offer help to child-bearing families. It gives privilege and extra prestige to child-bearing families. Because society has an interest in the stability of families that produce children, society also offers help, mostly through tax breaks.
Couples come to the government. The government doesn't hunt down relationships and demand that they submit to the state's approval. Couples ask for the government to treat them as a marriage, essentially asking the government to treat the spouses as a legal unit.
You don't want government to approve your relationship? Then don't come to the government asking them to approve it.
The government isn't on a relationship witch hunt. Instead, gay partners are demanding social approval, as if social approval is a right. It isn't.
Jul '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Robert Promm
"... a social evil that needs to be suppressed as any other social evil." · Jun 19 at 8:50am
That is one of the most chilling phrases I've ever seen.
Somehow, I imagine that barbed wire would be involved.
Jan '11
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Again, you have to make a distinction between the equality of persons and the equality of actions. Just because the persons are equal doesn't mean all of their actions have to be treated the same.
If a white guy and a black guy fill out a job application, and the black guy fills out every field neatly, while the white guy scribbles his nickname and nothing else, you don't demand that we treat their applications the same because they're equal persons. Just because they're legal equals doesn't mean that we have to treat what they do as the same.
The traditional understanding of marriage ... evidenced by DOMA law passed overwhelmingly in 1996 ... is that marriage is between one man and one woman. If you come to the government and ask for recognition of your marriage, that's what the state understands marriage to be.
If you want to change that definition, fine. Go through the political process. Put it before society and offer reasons.
But that isn't what's happened here. The gay lobby has instead resorted to accusations of bigotry, judge shopping, and social bullying.
Tolerance? You ask traditionalists for tolerance?
Sep '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Exactly! It's out of respect for long-held sacramental concerns that I'm not for gay marriage but civil unions.
Tommy De Seno:
It's my sacrament. Mind your business. · Jun 19 at 8:32am
Robert Promm: While the 20th century word is not found in the New Testament, implicit in Christ's teaching on divorce is affirmation of traditional marriage because His reference was back to Adam and Eve: "From the being it was not so...". "A man shall leave his father and mother and cleave to his wife." Nothing else is contemplated.
Exactly! But (to try to clarify my point), Jesus was speaking to first-century Jews who were asking for a divorce, a practice that was part of the Mosaic tradition but which he believed was sacrilege (not because it went against tradition but because it reflected a hardening of the heart). It was only when Paul sought to extend the good news of the resurrection to the Gentiles that the problem of homosexual religiosity as practiced in Greek temples (especially at Corinth) became an issue, which is why, I believe, Paul directly addresses these issues but not Jesus.
Mar '11
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Solving this problem is easy. In olden time, marriage was viewed as having something to do with reproduction. The state offered benefits to those who married and denied benefits to those who did not marry, not because marriage was inherently better than nonmarriage, but with the hope of fostering reproduction and, thereby, the continuation of society.
With the advent of same sex marriage, the reproductive link is gone, and so is any continued justification for the state to discriminate in favor of the married against the unmarried. A few tweaks of the tax, inheritance and other laws gets the state out of the business of promoting marriage and returns it to its proper position of neutrality regarding the living arrangements of its citizens. If the state wishes to continue to foster reproduction, then it may do so for people who actually reproduce.
Jul '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Peter Christofferson: ...
Maybe the Islamists are right about us after all. If we in the West have entirely lost the ability, or even the will, to distinguish morality from immorality, maybe we don't deserve to have a civilization.
Let's not mistake Islam's tenets for morality. Most of the elements of the West who deny or decry traditional morality are actually, explicitly or implicitly, advocating some new set of norms and mores in that space.
One of the reasons I cling to a Burkean libertarianism with it's roots in a Common Law is that it inherently acknowledges the success of a Saxon egalitarian arrangement, the rights of Man, is that, as an engineer, I am suspicious of grand changes applied to large systems whose proper working is required for the well-being of myself and my family. I came to this as a young man, and adding the responsibilities of husband and father has cemented it.
The 20th Century European experience showed us that people and society are plastic in their adaptation to social pressures, and under pressure can become monsters. The unintended consequences of tinkering, even the best intentions, can be extreme, even devastating.
Feb '11
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Leslie Watkins: I think it's mostly a middle-class, neurotic seeking of approval from strangers and not a desire for commitment in the traditional sense.
Well said.
Aug '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
Er... mightn't there be some public interest in seeing that, on average, future citizens grow up in stable homes? The wee littlest bit?...
Not that modern marriage law has a good track record of actually ensuring that future citizens grow up in a stable home.
Other than that, I agree with you. Let states legalize it if they like and defuse this issue. I doubt traditional marriages will break down because a few gay people get married. Traditional marriages break down for other reasons.
Edited on Jun 19, 2011 at 9:51amJul '10
Re: What is the Public Interest in Marriage? A Plea for Tolerance
You're wrong; it isn't.
At least I used to have confidence that public intellectuals – people like Professor Epstein – could be relied upon to defend eternal truths from a moral standpoint, not attack them from a utilitarian one. I no longer have that confidence, which is why I find this post depressing.
And which, by the way, is to say nothing against Professor Epstein's argument. As far as it goes, I find it entirely convincing and well-reasoned. If only it weren't directed against traditional marriage…
Take heart, I suspect your wish will be granted.
Edited on Jun 19, 2011 at 10:02am