From the December 15, 2003 issue: Federalism is a poor excuse for abandoning a core social institution.
Dec 15, 2003, Vol. 9, No. 14 • By MAGGIE GALLAGHER
IS MARRIAGE WORTH a constitutional amendment? A fair number of conservatives think not. "Leave it up to the states!" urges John McLaughlin. George Will, with customary eloquence, calls "constitutionalizing social policy" both a "misuse of fundamental law" and "imprudent . . . at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy." William Safire sees civil union as one of the "basic rights" that should be recognized in every state, "popular statutes to the contrary notwithstanding," though he cannot quite come to grips with what to do about same-sex marriage except to say that activist judges should probably leave the issue alone.
But activist judges won't leave it alone. With the recent Goodridge decision in Massachusetts, they are already opening the door to gay marriage. Why, then, do so many conservative voices reject the only possible effective political response?
One reason may be that many on the right view marriage as fundamentally a "values" issue. Marriage gets classified as "culture," which means private, not public; at best as "social policy," in George Will's term. If marriage is conceptualized in this way, many conservative intellectuals are led by their commitment to federalism to reject the idea of defining marriage in the U.S. Constitution. Let states experiment with different social policies and find out what works best. This view of marriage as a values question is shared by many on the left. And it seems to be the view of the Goodridge court, which pays tribute to marriage as a social institution with this rather limited list of reasons why marriage matters to anyone beyond the individuals it joins:
Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private, rather than public funds, and tracks important epidemiological and demographic data.
By contrast, when the court touches on the individuals' interest in marriage, it waxes positively poetic: Marriage "fulfills yearnings for security, safe haven and connection that express our common humanity" and is "among life's momentous acts of self-definition."
So from right to left, many express disapproval of changing our sacred Constitution on behalf of marriage. They're happy to concede that economic matters belong in the Constitution. The right to bear arms? Sacred (at least on the right). Excise taxes and the inviolability of contract? Naturally. Yet many seem to believe that a Constitution filled with such things will be somehow tainted by the mention of a girlish issue like making sure that "marriage in the United States shall consist of the union of a man and a woman."
Until quite recently, most educated Americans had a different view. When the United States refused to admit Utah to the Union unless it rejected polygamy in the late 19th century, lawmakers and judges agreed: Marriage was not just a private taste or a values issue or even a religious issue, it was one of the handful of core social institutions that make limited government, and a constitutional republic, possible. Shared family norms enshrined in law were at least as vital to the republic as norms about property rights and democratic government.
This raises two questions: First, why did so many educated Americans believe this about marriage until quite recently? Second, why do so few public intellectuals now conceive of marriage in this fashion? Why was the core importance of a common understanding of marriage once obvious, and when and how did it cease to be so?
The cause of the marriage crisis we now face is not merely a shift of values. Nor is it simply the work of '60s radicals. It is a broad, structural crisis visibly affecting every single developed nation in the world. As Allan Carlson has pointed out, the key to understanding this crisis is to recognize how many of the critical social functions marriage once performed have been taken over by government and the market.
For most of human history, the kin group was the primary unit of government, the locus of production and exchange, of care for the sick, the old, and the young. Marriage, as the key to kin-making, occupied a place of dominant importance. The family was for most people the primary work group, with husband, wife, and kids making much of what they needed on small farms. Disrupting a marriage meant endangering the livelihood of the entire family. To abandon the family was not only despicable, it was suicidal. If family bonds did not hold, who would care for you when you were sick, old, or otherwise unemployable?