Comments on Dorf on Law: A Tale of Two 'Marriages'

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2009-12-14T01:50:45.019-05:00

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Thanks, Joe, Very nice points, in going as they d...

2009-11-12T13:34:35.389-05:00

Thanks, Joe,

Very nice points, in going as they do straight to the heart of the matter of law's relation to culture and the morality that partly constitutes a culture. One quick question, though, which I pose sincerely with no firm opinion of my own as yet what the best answer would be: You mention an increased influence of government on our lives, and well-meaning judges and intellectuals giving aseptic rationales for laws originally animated by morality. And I wonder whether there isn't a tension here. For a law's proceeding from a moral view would amount, it seems to me, if that moral view were the only rationale for the law, to a government's becoming a morality-enforcer. And that of course would amount to a government influence on our lives -- possibly one that could not be legitimated if the morality in question was not shared by all whose government it was. Perhaps the appropriate thing for government to do in such case would be simply to abstain from taking a position on that moral matter, and therefore to abstain from enforcing that form of morality? I've a sort of gut feeling that the morality that all of us can, do, and must share is that core of morality often found under the name of 'the harm principle.' Basically, the idea would be that government must prevent unconsented harms, while leaving 'victimless' delicts to the private sphere. If this is a plausible view -- and I really do not know at this point whether it is, though I find it initially appealing -- then perhaps the right libertarian thing to do is say that marriage simply is not a government concern?

Thanks agin,
Bob

Excellent post and discussion of this issue. My o...

2009-11-12T12:56:39.546-05:00

Excellent post and discussion of this issue.

My objection resembles the first two you identify (that would be impracticable or unhealthy in some sense to separate political and cultural life). For me, it is an objection to sterilizing culture by force of law.

You are right that separating marriage into its moral and civil components would accord with the trend of 'compartmentalization' that has occured in modern society. But so much of this is due to the increased influence of government (including the courts) on our lives. As government authority increases, well-meaning judges and intellectuals find ways to give more aseptic rationales for laws originally animated by morality. Moral rationales are automatically equated to religion and must be purged by invocation of the shorthand 'separation of church and state.'

When it comes to marriage, this sanitization results in a legal construct that is nothing more than a superfluous contract between two people. The heart of "marriage," imbued with all its moral implications, ceases to be. Certainly two people can love each other just as much and feel such a moral bond, but that is true now, regardless of marriage.

The problem of course, is that society is making a judgment that homosexual relationships do not inhabit the same moral plane. But I don't think such offense authorizes a purging of morality in our laws. And as you point out through the third objection you identify, I don't think gay marriage advocates want it either - they want the morality of their relationships to be recognized.

I don't think the democratic will must justify the use of moral, cultural, and even religious values as support for policy (religious intent is a separate matter). The fact that your solution would potentially remedy a cultural battle and diminish offense is not sufficient reason to take the heart out of our laws and suppress democratic will in my view.

Thanks very much for the great comments, Bryce and...

2009-11-12T11:25:14.692-05:00

Thanks very much for the great comments, Bryce and Derek.

Bryce, on the concern that the state might attempt to force or otherwise induce particular denominations into affording sacramental unions to persons they do not afford them to now, I would think that such attempts, were they made (which seems somewhat unlikely at least at this point given the friendliness of our culture to free exercise), would be easily challenged on first amendment free exercise grounds. But doubtless there could arise controversies here, reminiscent of those that arose in connection, for example, with Bob Jones University's prohibition on interracial dating on putatively religious grounds, and with the Boy Scouts' free association argument against being made to accommodate gay scouts and scoutmasters. It might be worth noting, however, that these controversies occur now, and that there might not be any reason to expect a stricter division between state domestic partnerships and ecclesial marriages to render those more likely. If anything, I'm tempted to think that separation would render some such controversies less likely to arise, rooted as so many of them seem to be in our current conflation of the two senses of 'marriage.' I hope I'm right about that!

Derek, I take your point. One comforting thought in response might be that it would seem pretty easy to argue that the state is not meant to enforce all moral positions with the police power, but only such positions as are aimed at protecting unconsenting parties from harmful behavior taken by others, on some plausible understanding of 'harm.' My guess is that few would regard as plausible any claim that consenting homosexual partners cause 'harm.' But of course I am presently just guessing.

Thanks again!,

Bob

These are promising ideas. I was recently talking...

2009-11-11T19:18:54.246-05:00

These are promising ideas.

I was recently talking to a friend who is a member of the LDS Church and he explained that one reason the Church was opposed to gay marriage was the fear that, should gay marriage become legal, the Church would have its ability to marry people revoked if it refused to marry same-sex couples. But I found this puzzling for reasons related to those you discuss. Why should the Church care if it loses the ability to create civil marriages? If the government takes that power away from it, it could still perform sacramental marriages and then the couple could just go to a justice of the peace for the civil marriage part. Is that so disastrous?

As for ceasing to use the word "marriage" to refer to civil marriages, although I personally agree that "it's hard to see what objection anyone could have to consenting adults’ deciding their partners-in-union for themselves, without interference from others purporting to ‘defend’ marriage," I think many people would still object on the ground that they think homosexuality is wrong and shouldn't be endorsed or sanctioned in any way by the state. Not using the word "marriage" wouldn't affect this objection.

Still, maybe it would satisfy enough of the objectors to push the more hard core opponents of gay marriage to the fringe.

I oppose same-sex marriage on religious grounds be...

2009-11-11T19:06:53.756-05:00

I oppose same-sex marriage on religious grounds because of doctrine and on political grounds because I don't want anti-discrimination rights and religious rights to be put on a crash course. That being said, your thoughtful (and impressively respectful, I might add) proposal strikes me as a solid possible compromise. If that proposal were adopted, however, I wonder if one religion's refusal to perform sacramental same-sex marriages might be treated as grounds for a discrimination lawsuit. I'm sure that no religion would be forced to perform sacramental marriages against its own doctrines, but when a religion's doctrine leads it to discriminate on the basis of sexual orientation, could there be other legal repercussions (e.g., loss of tax-exempt status or state funds for relief programs)? I tend to think that compartmentalizing duties of church and state ought to, if anything, protect religious freedom more than infringe upon it.

Also, I share your distaste for state corruptions of religious practice. I'd love if government officials prayed on their own before meetings, but prayers in public tend to smack of insincerity and stir up hard feelings, neither of which are compatible with my understanding of religious faith.

I am in complete agreement. We should separate s...

2009-11-11T13:34:15.697-05:00

I am in complete agreement.

We should separate secular marriage into something called a civil union (or the like) and leave the sacramental ritual and meaning to the external religious institutions and their marriage.

Many thanks, Mike. I'm quite agreed with you on...

2009-11-11T11:44:26.169-05:00

Many thanks, Mike.

I'm quite agreed with you on all of this, partly on feasibility grounds suggested by the French example, and partly on desirability grounds rooted in (a) a commitment to non-subordination, (b) a Shiffrinesque distaste for state corruptions of religious practice, and (c) what I believe to be our constitution's 'codification' of those values.

I'm very drawn to the legitimate purposes to which Justice O'Connor appeals. But I also believe they can be served both fully and less problematically by means that do not amount to what I'm tempted to call 'strip mall theism.'

And such strip mall theism, for its part, seems to me to embody a completely disgusting devaluation both of persons who do not partake of particular religious traditions, and of those religious traditions themselves.

I might even add that I say this very much as a faithful if critical adherent of one such tradition, a sort of quasi-adherent of an older such tradition, and a fellow-traveller-style friend to many other such traditions.

Thanks again!,

Bob

Nicely put. Here is a related thought. Justice O...

2009-11-11T11:13:47.183-05:00

Nicely put. Here is a related thought.

Justice O'Connor has said of ceremonial invocations of God in government-run public events, that such Divine references "serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." (She said that in 1984 in Lynch v. Donnelly and she repeated the point in the 2004 Pledge of Allegiance case, Elk Grove Unified School Dist. v. Newdow.)

I understand the French experience to challenge the claim that invocations of God are the ONLY way to solemnize secular occasions. Now it could be said that the French are somehow different from us in this respect, pointing perhaps to the anti-clerical spirit of the French Revolution. But I think that argument won't wash. With respect to the role of religion in public life, France and the U.S. are cut from the same 1789 cloth. It's true that we have no direct parallel to the French principle of laicite, but that's more a legal point than a cultural one.

There are, in fact, numerous non-religious means of solemnizing secular occasions in our own culture: Moments of silence; the first stanza of the Star Spangled Banner (which is all that is ever sung); solemn instrumental music; the pre-1954 Pledge of Allegiance; etc. And I take it the larger lesson of the French experience is that if we had a rule that govt/public events must be strictly non-religious, more secular rituals of solemnification would develop.

Finally, I'm not saying that our current practice is unconstitutional. I'm just noting that one claim made in support of it by Justice O'Connor appears to be false.