Preserving Marriage in Substance, Not Just NameRYAN T. ANDERSON
Should the state treat marriages the same way it treats baptisms and bar mitzvahs -- as purely religious practices properly left to religious institutions?
This can of worms is in the news because of the debate generated by California's Proposition 8, a state constitutional amendment enacted last November to restore to the law -- after its invalidation by California's supreme court -- the conjugal conception of marriage as the union of a man and a woman. Legal scholar Doug Kmiec (who initially endorsed the proposition) now argues that it "is oblivious to the differing faith practices of our citizens." "Marriage is of religious origin," he claims, and "it should remain there." He observes that "some faiths accept same-sex relationships and others profoundly object." And he argues that "as a matter of religious freedom, both must be accommodated." His solution is to "separate state and church," which, he insists, can occur only if the state "employs non-marriage terminology for all couples" -- gay or straight -- while religious institutions continue using the term "marriage" however they see fit.
Kmiec's proposal has gotten some traction. In oral arguments last Friday in a challenge to Proposition 8, Justice Ming W. Chin referred to Kmiec's argument, asking the lawyers on both sides of the case whether his solution would be acceptable. Meanwhile, the Los Angeles Times ran an editorial endorsing the idea:
Kmiec and the editors of the Times join a long series of activists who insist on framing the same-sex marriage debate as a clash between civil liberties and religion. But that's not what it is. This debate is about the substantive differences between same-sex marriage and traditional marriage, whatever they are called. The question is whether the substance of the traditional institution should be endorsed both by voluntary associations (including houses of worship) and by the state as the ideal union of adults and the ideal environment for childbearing and childrearing.
Much more than share a television remote, spouses play a crucial public role in any healthy society. Much more than the private union of consenting adults, marriage is vitally important for the well-being of our nation's children. That's why Kmiec's characterization of marriage is unsound. While he is right to note that the state did not create marriage, he is wrong to claim that religion did. Marriage exists as a natural, pre-political, and pre-religious institution based upon human nature and its fulfillment. States and religions rightly recognize and support marriage, but it precedes both. Kmiec, who writes as a Catholic, fails to notice that his argument contradicts the Catholic faith, which teaches that you don't need the Book of Genesis -- or any divine revelation -- to know that man and woman are sexually differentiated and that marriage is founded on the bodily union of sexually complementary spouses. Though Catholics believe that Jesus elevated this natural relationship to participate sacramentally in the divine Trinitarian life, this elevation does nothing to eliminate or obscure marriage's status as a natural human institution. That is why the Catholic church has always regarded the marriages of nonbelievers as true and valid.
The anthropological record affirms that marriage is a natural institution, as scholars from the right and the left gathered by the Institute for American Values were able to agree:
So if supporters of Proposition 8 aren't seeking special protection for sectarian religious views, what do they want? Simply put, to preserve a sound understanding of marriage, for the well-being of both spouses and the children their union may produce. As Prop 8 supporters see it, the institution of marriage exists to bring a man and a woman together in a sexual relationship that is publicly recognized and approved because of its unique aptness for the bearing and rearing of children. Marriage attaches a father to his children -- and to his children's mother -- and fulfills the societal need for children to have the love and care of both mother and father. This institution is the natural response to human sexual embodiment as male and female, to human longing for bonding and intimacy, and to human dependency and need (especially in view of the fact that human newborns, unlike newborns of many other species, require many years of nurture before reaching self-sufficiency). That is why a well-ordered society protects and encourages marriage in the first place.
Redefining (or "undefining") marriage so that the state comes to embrace same-sex relationships as equally beneficial would deprive a class of children of their birthright to be raised by their natural mother and father. It would advance the notion that children do not need both a mother and a father, let alone their own mother and father. Same-sex parenting would send the message that parenting is not naturally gendered. There would be nothing known as "mothering" or "fathering," only unisex "parenting." Both culture and law would be unable to stress the important role that fathers play in their children's lives without giving offense to "alternative" families in which there simply is no father. This would have disastrous effects for our nation's children. Even the left-leaning research organization Child Trends affirms the importance of married mothers and fathers to child well-being. In a research brief summing up the scholarly consensus, they write:
Regardless of the name given to it, the state's promotion of any pairing of adults as the functional equivalent of marriage would eliminate in law and weaken in culture the ideal that children should be raised by their married, natural parents. The public meaning and purpose of marriage would be ended; marriage would be redefined as merely a private relationship of consenting adults, and parenthood as merely a legal status applied to those who choose to take responsibility for a child. The social function marriage plays in society -- providing children with their natural mother and father -- would be lost.
No longer seeing the point of public ratification of a strictly personal relationship, many people would cease to get or stay married. As the marriage rate fell, we would also see higher rates of divorce, cohabitation, and non-marital childbearing. As marriage came to be understood as simply a private relationship, the sense of its importance would erode. Traditional marriage would become one lifestyle and family choice among many -- one that could not legitimately be given a privileged status in law. That would eliminate the ideal of marriage as the place to bear and rear children. We've already seen these developments in several European nations.
To take Kmiec's reasoning to its logical conclusion entails state recognition of polygamy and polyamory. Some, no doubt, will cry that this is just extremist slippery-slope reasoning, but the conclusion follows strictly from Kmiec's principle: If some religions favor polygamous and polyamorous relationships, and if the state is supposed to be neutral among competing voluntary arrangements of adults, then on what grounds could the state refuse to recognize polygamous and polyamorous civil unions?
No matter what, the law will teach. Either it will teach that marriage exists as a natural institution with the public purpose of joining one man and one woman as husband and wife, ready to become father and mother to their children; or it will teach that marriage (or whatever we now call it) is just a creation of the state meant to recognize adults' private sexual choices and fulfill their desires. Neither option is neutral. And, contra Kmiec, neither is sectarian. But, for children and for society, only one is sound.
Ryan T. Anderson. "Preserving Marriage in Substance, Not Just Name." National Review (March 11, 2009).
This article is reprinted with permission from Ryan T. Anderson and National Review. To subscribe to the National Review write P.O. Box 668, Mount Morris, Ill 61054-0668 or phone 815-734-1232.
THE AUTHORRyan T. Anderson is editor of Public Discourse: Ethics, Law, and the Common Good. Previously he was the assistant editor of First Things and a Fellow of the Phillips Foundation. His articles have appeared in First Things, the Weekly Standard, National Review, the New Atlantis, the Claremont Review of Books, Touchstone, Books and Culture, Christianity Today, and the Human Life Review. Anderson is an alumnus of Princeton University, where he graduated Phi Beta Kappa and magna cum laude. Ryan Anderson is on the advisory board of the Catholic Education Resource Center.
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