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Freedom and Redefining Marriage



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At the risk of starting something I might not be able to sustain based on time constraints, perhaps I could make a very tentative response to Jerry Taylor’s questions. I will not address them as posed since I am not convinced they are entirely on point.

Since the state did not create marriage and rather recognizes a pre-political institution in providing marriage licenses, it is not clear (to me at least) that mandating a legal redefinition of marriage is a question of freedom. Under our current marriage laws, adults are free not to marry, to live with whomever they would like in whatever arrangement, to participate in religious ceremonies (even to call those ceremonies “marriages”), etc. The essential question raised by movements to redefine marriage (whether the existing one to remove sexual complementarity from the picture or one that would remove the current limitation to two persons) is whether the state must create a vehicle for the recognition of adult intimate relationships and, if so, for what purpose. It does not seem to be compelling to argue, as some do, that the answer to the first question is yes and that the reason for that answer is that the state’s job is to confer dignity on intimate choices of adults.

Human societies have pretty uniformly recognized some kind of social (not governmental) institution that encourages men and women to commit to one another and to the children their relationship (and no other relationship) creates. This arrangement protects a child’s opportunity to know and be raised by his or her own mother and father while simultaneously encouraging men and women to take responsibility for their children. Of course, it does not work in every instance and there has to be some room for individual variations. The need for space for people to do something different with their lives does not translate into a mandate for abandoning the social ideal, or its (rather mild) legal endorsement.

In fact, in practice (as Maggie Gallagher and Jennifer Roback Morse and others have argued), it seems to be the case that redefining marriage to include same-sex couples comes with some very serious challenges to religious liberty and other kinds of freedoms, since our marriage laws have taken on other legal baggage that creates obligations for third parties. My sense is that rather than striking a blow for freedom, redefining marriage is a novel power grab by the government of the social institutions of marriage and family. If I can be forgiven the self-promotion, I’ve discussed this more in an articles in the Rutgers Law Review and in a number of other essays (particularly the Howard Law Journal and North Dakota Law Review articles).



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