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Gay Marriage: Where Do We Put the Sidewalks?



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One of my favorite political fables concerns Dwight D. Eisenhower and his tenure as president of Columbia University. The campus was undergoing an expansion, and Ike was presented with two very different plans for laying out new sidewalks. The architects were irreconcilable, each insisting that his plan was the only way to go and that the other guy had it all wrong. Ike, sensible fellow that he was, had grass planted instead, telling the architects to wait a year and see where the students trod paths in the turf, and then to put the sidewalks there. It is a story that, as they say, is true, and may even have happened.

The Eisenhower sidewalk story often is used as an example illustrating the emergence of spontaneous orders. But it also invites by analogy a second, related question: What is the job of government? Is it to tell us which paths to take, or to help smooth the way as we choose our own destinations and our own ways to get there?

On the question of gay marriage, the paths have already been established. For better or for worse, we’re only paving them.

#more#I am in agreement with the position, articulated by many conservatives, that marriage is not legitimately the property of the state and not subject to redefinition by the state according to political truths “arrived at yesterday at the voting booth,” as a wise man once put it, and that the redefiners here are the political aggressors. I accept also Archbishop Dolan’s argument that the state, properly understood, has neither the authority nor the competence to redefine such institutions.

But if the state lacks the competence to redefine marriage, it also lacks the competence to define marriage, as we have demanded that it do for a long time, and as Archbishop Dolan and others continue to demand it to do. As a matter of fact, marriage has been in effect a political property for practically the entirety of our national history. Marriage licensure through the state is a norm of long standing, as is the insistence that a civil marriage be conducted together with any religious ceremony to legalize a union. Political disputes regarding marriage date back to at least the middle of the 19th century, and in 1856 the Republican party put its first traditional-marriage plank in its platform, calling for strong laws against polygamy.

That Republican platform bore fruit in the form of the Morrill Act, which made polygamy a felony, and in the Edmunds Act, which made — and still makes — bigamous cohabitation, even without a marriage ceremony, a federal crime — meaning that Charlie Sheen, Hugh Hefner, and many thousands of lesser known men, have been, at one time or another, federal criminals. (Mr. Sheen, obviously, is a one-man crime wave vis-à-vis our drug laws.) Should we have put Heffner in jail instead of allowing his relationships to generate many millions of dollars for the purveyors of his reality show? Would doing so have been consistent with the lived reality of life in these United States circa 2011?

My own preference is to make marriage an entirely private affair and to remove the icy hand of politics from the marriage bed entirely. Marriage should be a strong, enforceable contract negotiated between the contracting parties; if the parties sought to have their union blessed by a religious authority, then the contract would have to comport with the rules spelled out by that authority. This would, incidentally, give the Catholic Church far greater actionable authority over the marital practices of Catholics than does the current system, and the same would be true for other religious congregations. If traditional modes of life really are self-evidently preferable to contemporary libertinism, then they should be able to compete in the marketplace of ideas.

Advocating private marriage reflects in part a tactical concern: To the extent that we have marital arrangements that are politically defined, we almost certainly will have marital arrangements defined by the Left, the ethos of which pervades the law schools and a great deal of the judiciary, a fact whose force is multiplied by the plain reality that the libertine lobby simply cares much more intensely about these issues than does the great majority of the country, whose opposition to same-sex marriage and the like is at most desultory.  

Beyond tactical concerns, it seems to me that the place to have won this fight was in the culture, not in the legislatures. George Will spoke wisely when he argued that an America that would ratify a right-to-life amendment to the Constitution would be an America that did not need one. The New York legislature is simply paving the paths that have been trod in the grass, for better or for worse.

The rapid disintegration of traditional marriage following Gov. Ronald Reagan’s signing of the nation’s first no-fault divorce law is too well-documented to need further illumination here. Suffice it to note that New York’s authorities have under their jurisdiction one Woody Allen, who soon will celebrate the 15th anniversary of his marriage to a woman who was his stepdaughter in every sense but the strict legal one. As the law stands, it is far easier to walk away from a lifelong marriage than to walk away from $10,000 in credit-card debt.

As a Catholic, I must note that Archbishop Dolan’s colleagues have not been entirely blameless in the moral devolution of the West, having taken an accommodating stand toward various expressions of libertinism for decades now, and having been persistent advocates for the welfare state that in part enables it. (If the bishops really believed their own doctrine, Cardinal Wuerl in Washington would need a half-dozen assistants to perform all of the excommunications he would have scheduled.) A church with more confidence in its own doctrine would not need to lean upon the law.

Many of my colleagues argue that the state should use the law to support the traditional model of marriage because the state has a legitimate interest in the conditions under which children are reared. And so it does. But what we should do with that fact is unclear. For instance, the state’s interest in childrearing could be used to justify making our divorce laws much less liberal (which I could endorse), but it is impossible to imagine the citizens of this country choosing to return to the divorce rules that obtained before no-fault. (It should also be noted that the liberalization of divorce laws and the legalization of abortion together have had an effect on family life that renders same-sex marriage trivial by comparison. The patient has been shot twice through the head, and we are troubling about his swollen appendix.) There are dozens of policies that we might enact to reflect the state’s legitimate interest in childrearing (subsidies for high-IQ parents?), most of which would constitute unseemly intrusions into matters that are properly regarded as private.

The main obstacle to a fully private, strong-contract model of marriage is that the Left will not, under any circumstances, permit freedom of conscience. Just as state legislators in Pennsylvania have attempted to force Catholic dioceses to pay for contraception for their employees, and just as Catholic charities have been forced to provide adoption services to same-sex couples or shut down, Americans whose idea of marriage does not comport with that of the gay-rights lobby can be assured that live-and-let-live will not be the order of the day, and that they will be compelled to accept that which they regard as repugnant. As is usual in politics, the real choice probably will be between two forms of coercion. 

Two final thoughts: One is that gay marriage is a very different kind of moral question than is abortion, which is an act of premeditated lethal violence against a defenseless party, the prevention of which justifies forcible action (and it is to take forcible action that we institute governments). Second, most of my fellow right-wing Catholics appreciate that the mandate to care for the poor and the vulnerable need not necessarily translate into state action: We are commanded to feed the hungry, not to vote for the guy who will tax another guy to pay another guy to run an agency to feed the hungry. Given the current state of marital affairs, why shouldn’t we regard marriage as an equally private concern? I might feel differently about defending the sanctity of marriage under the law if there were much sanctity remaining to defend.



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