Next week a Kansas City judge will begin hearing oral arguments in a case challenging laws in the state of Missouri limiting marriage to a relationship between a man and a woman.
The case comes on the heals of the 9th U.S. Circuit Court of Appeals having upheld same-sex “marriage” in the state of Oregon by denying the National Organization for Marriage (NOM) the right to defend Oregon’s constitutional amendment defining marriage as between one man and one woman.
These local battles could culminate in a national show-down this fall when the U.S. Supreme Court is expected in disputes involving a number of different states. Christian Voice will aim to keep our readers informed of these upcoming Supreme Court battles, which build on the ambiguity of last January’s ruling.
Much of the rationale behind same-sex marriage in Oregon and other American states has been the notion that opposition to same-sex ‘marriage’ represents a massive intrusion into family life. As Scott Shackford recently claimed: “Laws forbidding recognition of gay marriage are a government intrusion…”
Earlier in the year I had a chance to engage in a public debate about same-sex ‘marriage’, and I argued that the shoe is actually on the other foot: it is gay marriage that threatens to bring unprecedented government intrusion into family life. Since my opponent quit in the middle of cross-examining me, I never had a chance to publish my statements. In preparation for the Supreme Court battles this fall, I thought it was a fitting time to share some of the arguments I made in that debate.
Gay Marriage Will Affect EVERY Marriage
One of the things I like to do with my children is to throw pebbles into a pond and watch the ripples. When you first throw a pebble into the water the ripples are rather small, but soon they widen and disturb the surface of the entire body of water. Legalizing gay marriage is like dropping a small pebble into a pond because it has ramifications that keep widening and widening. In fact, when a nation legalizes same-sex ‘marriage’, the ramifications are so broad that they affect every marriage in the land, not simply the, so called, ‘marriages’ among those of the same sex.
As marriage and family lose their objective fixity, all of us become de facto wards of the state.
Most people are not aware of how gay marriage will undermine the traditional family because it does so in ways that are subtle and ubiquitous. However, once gay marriage is introduced into a nation, it undermines the integrity of every family and every marriage in the land. It does this by rearranging the family’s relationship to the state. A government that recognizes such a thing as gay marriage is a one that has assumed the god-like power to declare which collections of individuals constitute a ‘family.’ But by this assumption government declares that both marriage and family are little more than legal constructs at best, and gifts from the state at worst. In the former case, marriage and family lose their objective fixity; in the latter case, all of us become wards of the state.
Consider: without the intervention of government, there are no pre-political, existential state of affairs that mark certain types of same-sex relationships out as being marriage within a state of nature. Unlike heterosexual marriage, which exists in nature and is then recognized by the state on the basis of intrinsic goods attached to it (including, but not limited to, the assurance of patrimony), homosexual marriage is an abstract legal entity with no natural or existential existence. Since neither consummation nor biologically-derived intrinsic goods are viable concepts among same-sex couples (a point the UK Parliament had to concede when introducing their same-sex marriage laws), it follows that the only way a consensual relationship between two people of the same sex can be upgraded into marriage is if the state steps in and declares that relationship to be a marriage, in much the same way as the state might declare something to be a corporation or some other legal entity. It is here that we see just how radical gay marriage really is.
The architects of same-sex marriage like to see themselves as being revolutionary, but even they usually fail to appreciate just how revolutionary their proposals actually are. Their project goes beyond the merely petty concerns for “equality” and “marriage freedom” that have become campaigning slogans in this debate. On the contrary, the truly revolutionary aspects of their agenda is that by substituting empirical goods with legal goods, the family’s role in society is not simply undermined, it is completely redrawn. Up to now, human societies have always been able to point to empirical acts that are a necessary condition for a viable marriage, such as consummation. Similarly, human societies have also been able to point to empirical acts which can invalidate a marriage, such as adultery. Human societies have also been able to point to intrinsic goods which marriages normally yield, including but not limited to the assurance of patrimony, the integrity of inheritance, the preservation of extended relationships of kinship and the role that such relationships play as the primary social structure against the aspirations of kings, ambitious overlords and the state. The web of marriage laws that tribes and societies have produced throughout the centuries have always been posterior to these empirical realities, so that what constitutes a viable marriage and family has never been purely a matter of jurisprudence. That is why we can speak meaningfully of a “common law marriage” even in the absence of explicit legal recognition. All of these empirical markers come crashing down under the legal positivism of same-sex marriage.
The architects of “marriage equality” are rearranging the relationship between family and state by making our most vital connections merely the result of positive law. For without the mechanisms of the state to confer the status of marriage upon two members of the same sex, there are no acts that organically mark their union out as being a specifically marital one. One can point neither to empirical acts nor to intrinsic goods that mark a same-sex relationship out as being “marriage” in a state of nature, and that is why the concept of a “common law marriage” can have no meaning when it comes to same-sex marriages. There are simply no non-legal state of affairs that allow us to distinguish a gay marriage from other types of same-sex relationships. The existential reality of the same-sex “marriage” relationship, which is usually explained in terms of a commitment of love between two consenting adults in which the physical elements are downplayed (don’t believe me, see here and here and here and here), does not itself distinguish that relationship from numerous other sorts of loving relationships that exist in this world. So what is it that sets this type of relationship apart to make it ‘marital’? Again, the answer is that it can only be the state.
Redefining the Ontology of the Family
Here’s the rub: once we concede that same-sex ‘marriage’ is purely the creation of positive law, then for these ‘marriages’ to be truly equal to heterosexual ones, we would have to acknowledge that EVERY marriage and family is a post-political institution instead of being pre-political. This concedes to the state the power to determine what collections of individuals constitute a marriage or a family, rather than acknowledging that the state merely recognizes a reality that precedes itself and exists within a state of nature on the basis of empirically recognizable markers. This is nothing short of a revolution in the ontology of the family, a challenge to what a family fundamentally is, and an unprecedented rearrangement of the relationship between state and family. The ubiquitous effects of this rearrangement are felt at every level of family life. When a family sits down at the table to eat together, there is a huge practical difference if they think they are only a family because of bonds created by the state, as opposed to thinking they are a family because of bonds that are natural and pre-political. When a son says, “that’s my Dad” or a man says “that’s my wife”, the meaning is completely different if you think these relationships are purely legal constructs instead of natural, pre-political realities. This difference is not always something we can explicitly quantify or even something that we are conscious of, as our deepest convictions are part of the taken-for-granted background by which we map our way in the world. The laws in our society play a formative role in this orienting process, as Aristotle understood. Laws are educational in so far as they train us (on a subliminal level that we are often unaware) in how we see ourselves, our relationships to others, and our relationship to the state.
Marriage As A Legal Fiction
If we attend to the experience of those nations that have legalized same-sex marriage, we see that these seismic shifts I’m concerned about have already begun to take place with a frightening consistency. In short, marriage has been reduced to little more than a legal fiction. In his article ‘Why Fight Same-Sex Marriage?’ Canadian Douglas Farrow gave examples of the ubiquitous effects that arose in Canada following the introduction of same-sex ‘marriage.’
“Six years ago, when same-sex marriage became law in Canada, the new legislation quietly acknowledged this [that family is nothing more than a legal construct]. In its consequential amendments section, Bill C-38 struck out the language of ‘natural parent,’ ‘blood relationship,’ etc., from all Canadian laws. Wherever they were found, these expressions were replaced with ‘legal parent,’ ‘legal relationship,’ and so forth. That was strictly necessary. ‘Marriage’ was now a legal fiction, a tool of the state, not a natural and pre-political institution recognized and in certain respects (age, consanguinity, consent, exclusivity) regulated by the state.”
That is ultimately why we should oppose gay marriage, even though almost everyone is ignoring these concerns. In short, the concern is that a nation that legalizes gay marriage is a nation that has intruded itself into the life of every family in the land; it does this by granting itself the god-like power to determine which collections of individuals constitute a family.
As the nations of the world rush to redefine marriage in order to accommodate the shrill demands of homosexuals (and yes, despite much sophistry to the contrary, the gay community does want us to redefine marriage), it might be nice to think that heterosexual marriage can preserve its ontological legitimacy without collapsing into purely a legal fiction in the eyes of the state (let alone in the eyes of ourselves). However, there is no reason to suppose that the push for equality will stop at the inclusion of homosexuals in the category of marriage; the logic of equality, once unloosed, may eventually entail that we conceive heterosexual marriages according to the same terms as homosexuals necessarily understand marriage. John Milbank has warned of this last year, noting that
During the course of recent debates in the British Parliament over the proposed legalisation of gay marriage, it has gradually become apparent that the proposal itself is impossible. For legislators have recognised that it would be intolerable to define gay marriage in terms equivalent to “consummation,” or to permit “adultery” as legitimate ground for gay divorce…. Why, then, should Christians worry, if this is all just a matter of terminology? Can we not live with differing definitions of marriage? … …the graver fear surrounding the new legislation is that secular thought will not so readily let go of the demand for absolutely equal rights based on identical definitions. In that case, we face an altogether more drastic prospect. Not only would “marriage” have been redefined so as to include gay marriage, it would inevitably be redefined even for heterosexual people in homosexual terms. Thus “consummation” and “adultery” would cease to be seen as having any relevance to the binding and loosing of straight unions.
Milbank went on to warn that in severing the natural link between sex and procreation, the natural children of heterosexual couples would belong to them on the same terms as the children of homosexual couples belong to them; that is, they would only legally be their children if the state decided that they might be legally “adopted” by them. Milbank ended on this sobering note, which is also a fitting summary of the concerns I have tried to articulate:
This is not about natural justice, but the desire on the part of biopolitical tyranny to destroy marriage and the family as the most fundamental mediating social institution. Heterosexual exchange and reproduction has always been the very “grammar” of social relating as such. The abandonment of this grammar would thus imply a society no longer primarily constituted by extended kinship, but rather by state control and merely monetary exchange and reproduction. For the individual, the experience of a natural-cultural unity is most fundamentally felt in the sense that her natural birth is from an interpersonal (and so “cultural”) act of loving encounter – even if this be but a one-night stand. This provides a sense that one’s very biological roots are suffused with an interpersonal narrative. Again, to lose this “grammar” would be to compromise our deepest sense of humanity, and risk a further handing over of power to market and state tyrannies supported by myths both of pure human nature and technocratic artifice.
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