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A federal court’s decision to enjoin enforcement of California’s Proposition 8 (the ban on gay marriage) is a clear-cut example of the central government trampling on the states, as well as of courts making a mockery of popular government at any level. On the other hand, supporters of the verdict see it, plausibly enough, as a triumph for equality before the law, a principle of republican self-government hardly less important than that of popular rule. Nowadays legal equality means, among other things, that men and women must be viewed as sexually interchangeable.
It’s worth tuning out all the noise that usually accompanies this dispute and taking a long view of what happens when marriage intersects with politics. A good source is Carle Zimmerman’s Family and Civilization. In the post-Roman West, marriage moved from tribal authority (where, for example, prohibitions regarding consanguinity of spouses were not always firmly fixed) to church authority (which was uniform and universal). With the rise of Protestantism, marriage fell increasingly under state authority — owing not only to rejection of the Catholic Church, but for a variety of theological reasons having to do with the proper division of power between secular and ecclesiastical government. As state and church grew further apart (even where they did not formally separate), marriage became by default a primarily secular institution. Not that it had ever been completely religious: common-law marriages in Britain, for example, were only grudgingly acknowledged by religious authorities.
While this was going on, government itself was becoming less personal and more ideological. Republicanism and democracy necessarily laid as great a stress on equality before the law as on popular rule. “Equality before the law,” though, is not a static concept — any individual or group that feels itself to be treated unequally in any way has an incentive to extend the sphere of “legal” equality into, say, questions of wealth or social status. The state itself has motives to broaden its own power — that is, to find new domains over which to extend “the rule of law” and all the mechanisms of adjudication and enforcement that come with it. And since the state begins by admitting few distinctions among its subjects under the rule of law, as the law expands into new areas of life, conventional social distinctions among its subjects collapse. Legal criteria replace all other criteria as administrative law grows.
Because of this, the institutional logic of the modern state is almost unavoidably incompatible with an institution as person-specific and historically complex as marriage. What has been happening for over a hundred years now — much longer in some places — is the redefinition of marriage along lines that accord better with the universal logic of liberal democracy.
Marriage was a necessary institution for heterosexuals not because it was the only setting in which children could be produced or because it’s the optimal setting in which to rear them (true as that may be), but because heterosexuals over time generally will produce children, and marriage is the institution that differentiates legitimate from illegitimate offspring. (In cultures where women were not expected or permitted to work, marriage was an institution necessary for their security as well. This function is also obsolete.) Once the legal debilities and social stigma had been removed from illegitimacy, marriage was already redefined. At that point, marriage lost its institutional and legal anchor and became a free-floating nexus of affection.
The scope of affections granted recognition by the state is now expanding, as a result of anterior changes within society. Even though most Americans still oppose gay marriage, few Americans still hold that homosexuals ought to be stigmatized. What’s a government to do in the face of such a seeming contradiction? Homosexuals have their reasons for demanding access to marriage, the state gains some advantage from granting it to them and has no internally logical reason to deny their petition, and marriage itself no longer has the qualities that once defined as a necessarily heterosexual institution. In this environment, it’s not surprising that the majority will to keep marriage exclusively heterosexual does not prevail.
What practical consequences follow? There won’t be much more homosexuality as a result of this, nor is there any reason why heterosexuals should now be more or less likely to get or remain married. The question of polygamy is completely separate from that of gay marriage — one may follow on the tails of the other, but there’s no reason, even by the state’s peculiar logic, why that must be so. (Certainly plenty of societies have had polygamy without gay marriage.) Conservatives are right to see large implications behind the liberal view of marriage, but they have failed to confront the fact that the liberal view of marriage was already triumphant long before gay marriage appeared on the horizon.
The indirect consequence of the California decision will, of course, be to re-energize the Republican base, which will turn out millions of voters who want to make America moral again, though every time they vote the result is never more morality but only more war and deficit spending. The Left, for its part, will see this decision as a victory and continue to embrace the leveling power of the federal judiciary, even though an excessive reliance on the federal government in general and the judiciary in particular has deprived the Left of a popular base for 40 years — both because there’s little need to organize among the people so long as a few judges can achieve your will, and because relying on those judges only alienates majorities whose will is frustrated. These symbolic victories guarantee that there will be a more right-wing electorate.
The law continues to find new areas of life to bring under its purview, and Judge Walker’s ruling on Proposition 8 may facilitate new legal intrusions into religious and family life. In the sort term, though, the most serious ramifications to flow from his decision will be seen in electoral politics. The ruling gives new currency to a peculiar inversion that took place long ago, one that saw the Left abandon the battlefields of economics and political power for the priestcraft of human rights, and the Right abandon educational and cultural hierarchy for pse
A federal court’s decision to enjoin enforcement of California’s Proposition 8 (the ban on gay marriage) is a clear-cut example of the central government trampling on the states, as well as of courts making a mockery of popular government at any level. On the other hand, supporters of the verdict see it, plausibly enough, as a triumph for equality before the law, a principle of republican self-government hardly less important than that of popular rule. Nowadays legal equality means, among other things, that men and women must be viewed as sexually interchangeable.
It’s worth tuning out all the noise that usually accompanies this dispute and taking a long view of what happens when marriage intersects with politics. A good source is Carle Zimmerman’s Family and Civilization. In the post-Roman West, marriage moved from tribal authority (where, for example, prohibitions regarding consanguinity of spouses were not always firmly fixed) to church authority (which was uniform and universal). With the rise of Protestantism, marriage fell increasingly under state authority — owing not only to rejection of the Catholic Church, but for a variety of theological reasons having to do with the proper division of power between secular and ecclesiastical government. As state and church grew further apart (even where they did not formally separate), marriage became by default a primarily secular institution. Not that it had ever been completely religious: common-law marriages in Britain, for example, were only grudgingly acknowledged by religious authorities.
While this was going on, government itself was becoming less personal and more ideological. Republicanism and democracy necessarily laid as great a stress on equality before the law as on popular rule. “Equality before the law,” though, is not a static concept — any individual or group that feels itself to be treated unequally in any way has an incentive to extend the sphere of “legal” equality into, say, questions of wealth or social status. The state itself has motives to broaden its own power — that is, to find new domains over which to extend “the rule of law” and all the mechanisms of adjudication and enforcement that come with it. And since the state begins by admitting few distinctions among its subjects under the rule of law, as the law expands into new areas of life, conventional social distinctions among its subjects collapse. Legal criteria replace all other criteria as administrative law grows.
Because of this, the institutional logic of the modern state is almost unavoidably incompatible with an institution as person-specific and historically complex as marriage. What has been happening for over a hundred years now — much longer in some places — is the redefinition of marriage along lines that accord better with the universal logic of liberal democracy.
Marriage was a necessary institution for heterosexuals not because it was the only setting in which children could be produced or because it’s the optimal setting in which to rear them (true as that may be), but because heterosexuals over time generally will produce children, and marriage is the institution that differentiates legitimate from illegitimate offspring. (In cultures where women were not expected or permitted to work, marriage was an institution necessary for their security as well. This function is also obsolete.) Once the legal debilities and social stigma had been removed from illegitimacy, marriage was already redefined. At that point, marriage lost its institutional and legal anchor and became a free-floating nexus of affection.
The scope of affections granted recognition by the state is now expanding, as a result of anterior changes within society. Even though most Americans still oppose gay marriage, few Americans still hold that homosexuals ought to be stigmatized. What’s a government to do in the face of such a seeming contradiction? Homosexuals have their reasons for demanding access to marriage, the state gains some advantage from granting it to them and has no internally logical reason to deny their petition, and marriage itself no longer has the qualities that once defined as a necessarily heterosexual institution. In this environment, it’s not surprising that the majority will to keep marriage exclusively heterosexual does not prevail.
What practical consequences follow? There won’t be much more homosexuality as a result of this, nor is there any reason why heterosexuals should now be more or less likely to get or remain married. The question of polygamy is completely separate from that of gay marriage — one may follow on the tails of the other, but there’s no reason, even by the state’s peculiar logic, why that must be so. (Certainly plenty of societies have had polygamy without gay marriage.) Conservatives are right to see large implications behind the liberal view of marriage, but they have failed to confront the fact that the liberal view of marriage was already triumphant long before gay marriage appeared on the horizon.
The indirect consequence of the California decision will, of course, be to re-energize the Republican base, which will turn out millions of voters who want to make America moral again, though every time they vote the result is never more morality but only more war and deficit spending. The Left, for its part, will see this decision as a victory and continue to embrace the leveling power of the federal judiciary, even though an excessive reliance on the federal government in general and the judiciary in particular has deprived the Left of a popular base for 40 years — both because there’s little need to organize among the people so long as a few judges can achieve your will, and because relying on those judges only alienates majorities whose will is frustrated. These symbolic victories guarantee that there will be a more right-wing electorate.
The law continues to find new areas of life to bring under its purview, and Judge Walker’s ruling on Proposition 8 may facilitate new legal intrusions into religious and family life. In the sort term, though, the most serious ramifications to flow from his decision will be seen in electoral politics. The ruling gives new currency to a peculiar inversion that took place long ago, one that saw the Left abandon the battlefields of economics and political power for the priestcraft of human rights, and the Right abandon educational and cultural hierarchy for pseudo-populist politics.
Filed under: Culture, Politics
” few Americans still hold that homosexuals ought to be stigmatized.”
Few influential Americans, certainly. But according to a 2008 Gallup Poll, 40 percent of Americans thought homosexual relations should be criminalized. (Google “Americans Evenly Divided on Morality of Homosexuality”)
These are the people not allowed on Fox News. Perhaps they’re the stigmatized ones.
“There won't be much more homosexuality as a result of this, nor is there any reason why heterosexuals should now be more or less likely to get or remain married.”
This feels like claims that divorce laws will only affect a few troubled marriages.
Part of the attraction of marriage is that it communicates what it is to be an adult man or woman. I wouldn’t be surprised if SSM subtly discourages this attraction, among others.
Churches tend to be the institutions most supportive of marriage. If they are demonized as the equivalent of Jim Crow, that institutional support will be lessened in the future.
Also I foresee many more government attacks than you on individuals and institutions who won’t recognize SSM. Shutting down Christian adoption agencies sure looks like a sign of far-reaching radicalism to me, and it’s already happened in Massachusetts and DC with the help of SSM laws.
Conservative married people (and some unmarried) need to fix their own marriages and stop divorcing at 50% rates BEFORE they go around judging OTHER marriages (polygamy, gay marriage, etc.) like they’re somehow vastly inferior. Until they fix their own marriage problem, the marriage monopolists have no moral right to judge or deny others from marrying.
I also hate the fact that having a child out of “wedlock” is somehow considered “illegitimate.” It’s a ridiculous social stigma that punishes a child for the sins of his parents. Why?? Of course, I’m not arguing for teens to go around getting pregnant by the 1,000s or NOT use protection, but for god sake, if a couple wants to have a kid and is responsible, who cares if they’re not married? As long as they raise the child well, it’s frivolous to focus on the lack of marriage.
The sad thing about cohabitation, though, is that we have been so indoctrinated to believe that we are only fully committed to our partners with marriage. Therefore, married couples are so much less likely to break up than one that thinks it’s fully committed but cohabits. We need to end this thought process and just be committed to our spouses, partners, REGARDLESS of whether we’re married. A bunch of words from some priest or reverend and a ceremony are just a formality.
[...] Hail Ruling Striking Down Prop. 8Bell Gardens SunObama Still Opposes Same-Sex MarriageCBS NewsAmerican Conservative Magazine -TODAYonline -Financial Timesall 4,692 news [...]
For the most part, marriage is a formality. But we have gotten so caught up in all the materialist and formal aspects of it that we’ve lost sight of what’s REALLY important: being faithful and committed to your partner, committed to making the relationship work. Rings, priests, churches, it’s all irrelevant when compared to the ultimate goal of marriage for most people. THAT is what people need to remember. It’s not about the trivialities.
The concept of “marriage” as an institution wouldn’t even be necessary if couples would just remain committed enough to making their relationships work and last. We have become pansies when it comes to doing that, though. If it’s “too hard”, we just get divorced or give up.
[...] McCarthy writing at The American Conservative / Tory Anarchist: “[T]he institutional logic of the modern state is almost unavoidably incompatible with an [...]
Mr. McCarthy’s mention of Zimmerman’s work is very timely. I have not seen it explored in any length elsewhere, despite the fact that it delineates how we have arrived at the present understanding of marriage better than anything else of which I am aware. It is also interesting in that it postulates that our present form of family, i.e. the “atomistic” model, is ultimately unsustainable and will revert to traditional forms. Zimmerman examines ancient Rome and sees the same forces at work as we have in modern America. Of course, we know what happened then: the clannish barbarians overran the atomistic Romans.
I don’t know whether the same pattern will manifest itself in the near future, but Zimmerman’s observations are worth considering, regardless of one’s ideological predisposition. If he is correct, then we are not entering wholly uncharted territory (as some conservatives claim) but reenacting the demise of Roman civilization. Zimmerman’s family typology may be simplistic and obviously we are not doomed to repeat history, but everyone involved in the marriage debate should engage the argument he sets out. It’s a shame it is more well-known.
“Conservatives are right to see large implications behind the liberal view of marriage, but they have failed to confront the fact that the liberal view of marriage was already triumphant long before gay marriage appeared on the horizon.”
Well said.
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