Marriage: social order or individual freedom?

For hundreds of years, human society has ordered itself around the institution of marriage. Men provided safety, security and sustenance for women, women ordered the household so that men could work out in the community, and the home the man and woman built provided the place for children to be raised in accordance with the expectations and standards of the community. Marriage has not been first and foremost about the happiness of the spouses. That has been a byproduct of a husband and wife reaching for their better selves and working together to become more than the sum of their parts, but the primary purpose has been one of social order and securing the propagation of society.

This all started to change in the twentieth century when women in Europe and the United States went into the workforce and changed the balance and characteristic of the home. Then with the advent of birth control and the Supreme Court decisions of the 1960s that institutionalized the right to privacy in the U.S., the link between marriage and the propagation of society was irreparably broken. Marriage was no longer necessarily about social order. The individual happiness of the people in the marriage was the first order concern of the institution. No-fault divorces became the laws of the land in the states, and everyone accepted the new conventional wisdom without much thought as to the ultimate logical conclusion.

So we should not really be surprised that the definition of marriage has been increasingly challenged over the past twenty years, now to the point where it is a question of equality under the Constitution. Of course it has nothing to do with equality because everyone is perfectly free to marry anyone of the opposite sex. Yet the question remains - if marriage is first and foremost about the happiness of the individual and no longer the primary concern of society, then what right does society have to restrict who can and cannot be married? And there you have it - the competing values that are at play in contemporary debates over the definition of marriage.

Those who defend the traditional understanding of marriage between one man and one woman see marriage still as the fundamental bedrock and foundation of society. Social order is protected by marriage, so society has an obvious interest in ensuring its health. Nevertheless, proponents of traditional marriage lost the debate before it really started. Once the link between marriage and propagation was severed in our minds, the primary reason for marriage to serve as a societal institution was lost.

Those who advocate for the expansion of marriage for same sex couples see the purpose of marriage as serving the personal interests and happiness of the parties of the marriage. It is a contract that can be entered and exited when it no longer suits the needs or interests of one of the spouses. Society has no business getting involved; the government should "stay out of the bedroom," etc. Nevertheless, proponents of expanding the definition of marriage, along with all the rest of us, have lost the sense in which society is vested in the health of marriage. The future of humanity is bound up in the institution of marriage, and that fact can't be changed, no matter how hard we try to ignore it.

The currents of history feel like expanding the definition of marriage is inevitable, but even if that plays out, society needs to simultaneously find a way to reunite marriage with childbearing and childrearing. Children with two loving parents who are plugged in and responsible are the best cure to inner city crime and gang activity, suburban drug abuse, and substandard education across the board.

In any case, our fundamental misstep in this debate as a people was to allow the discussion to become federalized. Marriage and family have been regulated by the states since the inception of the Republic, and the federal Constitution delegates no authority to the federal government in the area of marriage. Allowing each state to decide for itself how to order and structure marriage would prevent the mistakes we have made with abortion -- politicizing the issue, removing any room for democracy to drive debate and compromise, and smothering presidential elections with social issues that should not be the concern or purview of the U.S. president.

Are we so afraid of losing control that we can't trust each other to come to the right answers? Is the constant, unending struggle for the political machinery in order to dictate and impose our own beliefs the only resolution to the question? God save us from ourselves if it is. The Founders, once again, knew better.

Washington DOMA

A friend e-mailed this link to me a couple of weeks ago on the Washington Defense of Marriage Initiative. This group is protesting a case decided by the Washington State Supreme Court entitled Andersen v. King County. In the ruling, the Court argues that "DOMA [Defense of Marriage Act] is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents."

The Washington Defense of Marriage Initiative group (referenced in the link above) seeks to amend Washington State's marriage laws to limit marriage to those "who are capable of having children with one another," to "require that couples married in Washington file proof of procreation within three years of the date of marriage or have their marriage automatically annulled," to "prohibit divorce or legal separation when there are children," and to "make the act of having a child together the legal equivalent of a marriage ceremony." The group hopes that the absurdity of such proposed language will undermine the Washington Supreme Court's ruling in the minds of the people.

That such language is unthinkingly assumed to be absurd is another indication of how far American society and jurisprudence have swung in favor of individual rights. Perhaps this is good, perhaps it is not. Nevertheless, there was a time in our history when the main reasons for getting married were to have children, to order society, and to ensure the continuation of the community. Historically, marriage has been, first and foremost, a societal concern and a legally binding contract which society - and, by extension, the State - had an interest in promoting and defending.

There are very important questions attached to the current debate over marriage:

• What is the nature of marriage?
• Does the State have any interest in the state of marriage as a whole?
• Does the State have any business regulating the affairs of married people? What about affairs of unmarried people?
• Should the State be able to limit marriage to certain types of couples?
  
• Is marriage that is defined in the light of individual rights still marriage?
• Can society survive without marriage as it has been?

Whatever the answers to these questions, it would be disastrous for the courts to try to answer them for society. Roe v. Wade was damaging enough, but if the courts continue to push into the realm of legislative concern and short-circuit public debate, the reverberations could destroy our constitutional foundations.

As strange as it might seem, politics is our only hope.