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?
In America and other developed countries, government now provides social insurance for the unemployed, the destitute, the elderly, the sick. Meanwhile each of us depends far more on the market than on family members to provide what we need in material terms, not only the goods we consume, but also the workers we need to produce goods.
These changes are broad, deep, and permanent. We have no desire to abandon the miracles of market capitalism to go back to churning butter and weaving cloth on our family farms, even if it were economically possible. The local WalMart will do just fine, thank you. As for government--Social Security, Medicare, Medicaid, unemployment insurance, child care subsidies, public education, and some form of welfare for poor kids (and their single moms) all are here to stay.
THESE ECONOMIC and political changes did not necessarily make sexual revolution a good idea, but, along with contraception and abortion, they made it possible. Before all these changes, it was unthinkable for large numbers of ordinary people to imagine that what they did with their bodies was nobody's business but their own.
Today, marriage retains significant economic and social-insurance value; it remains an important unit of production and provides much dependent care. (As singles age, for example, they are especially likely to end up in nursing homes.) But relative to other social institutions like government and the market, marriage has played a diminishing role in recent generations, to the point where many Americans can no longer see the functions it performs. Educated Americans do not immediately grasp how they and the country at large depend on marriage. So many feel nothing essential is lost if we move, state by state, to a multiplicity of definitions of marriage--whereas "contract," say, or "private property" or "corporation" they can see must mean by and large the same thing in every state for the economy to function.
Marriage increasingly is not a public norm, but an optional lifestyle and a mostly emotional good. Reducing marriage to an emotional good fuels a divorce culture, since marriages that cease to fulfill "yearnings for security, safe haven and connection," in the words of Goodridge, are easily abandoned. And when millions of young women view marriage as having lots to do with their own yearnings and nothing in particular to do with making babies, unmarried childbearing abounds.
So why not just go with the flow? Give in and give up on the idea that marriage is a social institution and accept the economic and social changes that have reduced it to a mere symbol, a form of expressive conduct? Why not gay marriage? Why not polygamy, for that matter, if it makes three people, or four people, or a majority of a state's supreme court judges happy? What right has the government to interfere in romance? What possible rational reason is there to oppose the longing of people to express their love in legal commitments?
Here are two: First, for every American who cares about the future of American civilization, marriage continues to have a vital function that no other institution is capable of fulfilling: creating the next generation and giving children the mothers and fathers they need.
Second, for proponents of limited government--which is in turn what makes freedom possible--marriage is the only alternative to a vast, continued expansion of the welfare state, where the people themselves shall be shaped by government (through the courts) and socialized by elites in a new set of values. When mothers and fathers don't marry and stay married, the demand for government protection and services inevitably increases. Women alone raising children need help. If marriage is not the normal, usual, and generally reliable way of raising children, mothers (and their friends and relatives) will demand an expansion of government services to help them cope.
The practical result of the retreat from marriage as a social norm has been a vast expansion of the welfare state. What conservatives call welfare is only a drop in the bucket: High rates of divorce and unmarried childbearing are a driving force behind virtually every category of social spending. As more than 100 scholars and civic reformers noted in their 2000 Marriage Movement Statement:
Divorce and unwed childbearing create substantial public costs, paid by taxpayers. Higher rates of crime, drug abuse, education failure, chronic illness, child abuse, domestic violence, and poverty among both adults and children bring with them higher taxpayer costs in diverse forms. . . . While no study has yet attempted precisely to measure these sweeping and diverse taxpayer costs stemming from the decline of marriage, current research suggests that these costs are likely to be quite extensive.
High rates of divorce and unmarried childbearing reinforce each other, connected as they are by the cultural idea that marriage is expendable for children. If marriage is primarily about adult intimacy, safe haven, and connection, then there is no good reason to get married when you want to have a child, or find you have unexpectedly conceived one. If marriage is mainly about adult yearnings, there is no good reason to work at a struggling marriage when it ceases to be satisfying or particularly intimate. Trade in your spouse as many times as you need to, if satisfaction with your spouse is the purpose of marriage.
THE SOCIAL NORM that needs reinforcing, in the law and in the culture, is not: Soul mates should marry. It is: Children need fathers and mothers. This norm alone can sustain marriage as the primary source of support for mothers and their children, in lieu of government. Court-imposed gay marriage is not an expansion of individual liberty, but part of a highly successful strategy of certain elites to use the law to impose their values on the American people, reshaping social norms and institutions in the process.
What we see emerging is a new sort of society where educated elites use the soft power of the state to reengineer people's values as they will. The ordinary limits of governmental power cannot stop them, since the new values will be defined as "basic rights"--in whose name even libertarians will support a vast new intrusion of government into the lives of individuals. After redefining marriage, the next act is to redefine parenthood to accommodate two-mother families, two-father families, and whatever else people's yearnings for connection may produce. Perhaps libertarians will hail all this as an advance. When the new day dawns, courts--once bound by the idea that motherhood and fatherhood sprang from nature--will be free to define family relationships and distribute parental powers as they see fit.
Because marriage is a public, not a private, act, everyone will be forced to acknowledge the new social values. Public authorities will have to accord equal respect to whatever family forms adults choose, as they exercise their new basic right. Schools will become messengers of the new values; with time, radio stations may discover that they have failed to promote the "public good" if they object too strenuously to the new morality. This will all be done in the name of individual liberty, but the new liberty will consist of government's punitively reshaping social institutions to make them purveyors of the moral values of narrow elites. Federalism--whose whole purpose is the dispersal of power--will have been exploited to give power to those who wish to revamp social norms. Limited government is exactly what is under sustained attack.
Meanwhile, if same-sex marriage proceeds apace, all the promising recent improvements in the culture of marriage will be halted in their tracks. Marriage will no longer be about producing and protecting the next generation, or about getting mothers and fathers for children. In the new regime, marriage will be about legally affirming the sexual and emotional lifestyles of adults in the governing class. What are the likely consequences for marriage?
If family systems are to function in a highly mobile society, there must be core values that are public and shared. This common definition is what allows families, churches, and communities to sustain a marriage culture, within which children--who will someday go out and marry biological strangers, from different families, churches, and communities--are reared to be good husbands and wives. One of the insights gleaned from experiments with capitalism in post-Communist Russia is the importance of cultural values in making economic freedom work. Could the economy function if each state had a fundamentally different notion of property? Can marriage survive as an institution in a society where it means one thing in Massachusetts and something radically different in South Carolina? Or where Massachusetts marriages are not recognized in other states?
Large, complex societies can easily forget that they need to reproduce if they are going to survive. European countries are in a population decline so severe that in a hundred years or so, some of them appear poised to become majority Islamic societies. The Japanese health minister recently issued a warning that, if childbearing rates don't increase, the Japanese people are going to become extinct.
Getting men and women to channel erotic energy into the narrow but immensely fruitful union we call marriage is not easy. The things adults have to do consistently in order to give their children a stable, married mother-father home are hard. The public celebration and legal validation of marriage are intended to help define the importance of this task. That is the only real justification government has for interfering in peoples' personal lives.
If marriage is only about intimacy, connection, and safe haven, as the Goodridge majority maintains, then government has no business in it. Maybe the advocates of family diversity are right: Maybe the idea that children need mothers and fathers, and that society needs babies, are outdated, dispensable notions. If you believe that, then permitting social experimentation across the states may be just the way to go.
But if you believe that marriage is one of a small number of social institutions (like democracy and property) that make limited government possible, then there is nothing at all anomalous about defining it in the Constitution. To so protect it amounts to saying again, as our forefathers said to Utah polygamists in the 19th century: The social system of our country, to which all our states subscribe, entails a shared respect for the republican form of government, for property rights, for free expression--and for marriage.
Maggie Gallagher is the president of the Institute for Marriage and Public Policy in Washington, D.C.