I’m personally of the view that there is a major distinction between religious marriage and civil marriage. There are lots of civil marriages that various religious groups do not accept, and that is as it should be. Insofar as the question is whether gay couples should have a right under civil law to enter into a legally recognized and legally defined partnership, I would agree with the Court that the law should leave this choice to the people involved.The simplest way out might be to limit government, according to Reason's Sheldon Richman. "Let’s get something out of the way at the start: the state—even if it should exist—should not be involved in marriage." It's not that simple, as Mr Richman goes on to explain, but on libertarian grounds the national government ought be protecting equal treatment under the laws. That turns the issuance and honoring of marriage licenses into a straightforward use of the full faith and credit clause, Justice Scalia notwithstanding.
At the same time, the civil law does not and should not have the power to compel religious groups to recognize as religious marriages civil unions that violate the canons of their faith. Nor should religious institutions be required to open their facilities for the use of wedding ceremonies that violate their ideas about what a marriage is. If a Catholic church only wants to hold Catholic weddings, that is the church’s decision to make, not the Court’s.
As to social policy—whether providing legal recognition and social acceptance to same-sex couples is good for society or bad for it—that’s a question that we just can’t answer yet. The widespread acceptance of adult homosexuality is genuinely new in Western society. (The ancient Romans and Greeks would have opposed gay marriage between adult men as a terrible perversion.) We will have to see how it works out in practice.
In the interim, social policy ought to focus on strengthening the non-gay marriages (without discriminating against or excluding gay marriages from social benefits or legal recognition). It’s clear that those marriages—especially for lower middle class and lower class people of all races—are in bad shape indeed. If it turns out that opening civil marriage to gay couples makes pro-marriage policy less contentious, then even hardcore religious opponents of gay marriage might end up taking some comfort from this ruling.
The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since.At ratification of the Fourteenth Amendment, there was no fundamental right to a driving license, as there were no driving licenses. At the same time, a transient's driving license is valid during transit, but a person changing states of residence has to qualify for the new state's driving license. That has not been the case with marriage licenses, although a couple changing residence is subject to the new state's tax code and community property rules. Word has reached Cold Spring Shops of an attempt -- perhaps guerrilla litigation? -- to compel all states to issue and honor concealed carry permits. And as I am assembling this post, Reason weighs in with a subversion of the tax code.
Leaving the constitutional conjectures to others more competent to weigh the legalities, let's consider the possibility of institutions evolving to conserve on transaction costs. There's a lengthy essay in The Freeman by Steven Horwitz laying out several hypotheses about the evolution of marriage and family. The money quote comes early in the essay.
The love-based marriage represented the progressive influence of individualism on the culture, having already conquered the economy through capitalism and the polity through constitutional democracies.In Professor Horwitz's analysis, creative destruction also midwives same-sex marriage.
As many of the economic and political functions of the family moved out of the household and women and children moved back in, new functions arose to fill the vacuum. Increasingly families became concerned with psychological and emotional fulfillment, and childhood underwent perhaps the largest change.
The slow acceptance of the idea of same-sex marriage is the culmination of two of the capitalism-driven trends we have already identified. First, economic growth made it possible for men and women to survive outside the institution of the family. As the historian of sexuality John D’Emilio argues, it was the wage labor created by capitalism that made the notion of “gay identity” possible. Separating the ability to earn income from the heterosexual family meant it was possible to live one’s life as a homosexual in a way that had never been possible before. The gradual increase in social visibility of first gays then lesbians over the twentieth century reflects the shift in marriage and the family from an economic to a psychological institution, again made possible by capitalism.But that turns the civil institution -- as opposed to the religious sacrament -- of marriage into a contractual agreement (with no-fault divorce, it's notarized dating) for the benefit of adults. Thus, a question I raised years ago, still stands. "Implicitly, it is the state, and not the culture, that is protecting the interests of children. Doesn't that imply a competence for the state in protecting the interests of children that it has not demonstrated when it comes to providing education, or school lunches, or safe neighborhoods?" (National Review has redesigned their website, and the links in that post no longer work.)
Second, as emotional fulfillment became a central function of marriage, it should come as no surprise that gays and lesbians would want to participate. When romantic and sexual attraction become the reasons to get married and stay together, what, argue gays and lesbians, differentiates their relationships from heterosexual ones? When the number of childless couples continues to grow and when more heterosexual couples have children through adoption or artificial reproduction, what differentiates them from same-sex couples?
But treating legal marriage as a contractual arrangement for the benefit of adults doesn't sit well with everyone. Here's Ryan Anderson in a First Things symposium.
No, marriage isn’t just a private affair; marriage is a matter of public policy because marriage is society’s best way to ensure the well-being of children. State recognition of marriage acts as a powerful social norm that encourages men and women to commit to each other so they will take responsibility for any children that follow.Perhaps so, although that train wreck happened long ago. "Put another way, the culture is doing just fine in protecting children -- in neighborhoods where the adults act responsibly, and not so well -- in neighborhoods where the adults don't." In the same symposium -- scroll past a lot of E-T-T-S lamentations, Melinda Selmys argues that the way to demonstrate the evolutionary advantage of an institution is to demonstrate the evolutionary advantage.
Redefining marriage to make it a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than about the needs—or rights—of children. It teaches the lie that mothers and fathers are interchangeable.
The challenge, then, is for advocates of the traditional family to stop wringing their hands over the SCOTUS decision and blaming the gays for the demise of the family, and to focus instead on renewing the practice of sacramental marriage by building up communities of support so that the traditional understanding of marriage will become practicable and attractive again.Think there's a lot of self-segregation now? It's likely to become more pronounced.
Likewise, there's a lot of lamentation in the National Review symposium, although Jennifer Roback Morse, who has a background in utility regulation, appears to be suggesting that a compelling state interest in keeping track of parentage cannot be wished away.
Parenthood will no longer be considered a natural reality to be recorded by the government but the creation of the state for the benefit of adults.Or the evolutionary advantages of respecting bourgeois convention will be so clear that polymorphous perversity will collapse of its own internal contradictions?
Some children will have a legally recognized right to know both of the parents. Other children will be blocked by the state from knowing both parents.
Some children will have three or more people named as parents on their birth certificates.
Parenthood by contract among interested parties will become legally enforceable by the states.
Third-party reproduction will continue unregulated and unabated. By the time people figure out that this is a human-rights abuse, it will be so widespread and entrenched that it will be extremely difficult to root out.