|
|
"Gay Marriage: Why It is Good for Gays, Good for Straights, and Good for America," by Jonathan Rauch. Times Books, 2004, 224 pages.
Marriage Is Fabulous
by John Coleman
With his presidential radio address on July 10, George W. Bush kicked off a searing congressional debate over the Federal Marriage Amendment with his unequivocal support for defining marriage constitutionally as the union of one man and one woman. "A great deal is at stake in this matter," Bush commented. "The union of a man and a woman in marriage is the most enduring and important human institution, and the law can teach respect or disrespect for that institution."
|
|
John Coleman is a freelance writer and assistant director of a classical liberal fellowship program in Washington, D.C.
|
|
The president's position seemed simple enough. The White House, however, was divided. Lynne Cheney, the vice president's wife and the mother of a lesbian, opposed the president, claiming instead that marriage is an issue better left to the states. "[T]he constitutional amendment discussion will give us an opportunity to look for ways to discuss ways in which we can keep the authority of the states intact," she implored — and while the president publicly opposed "judicial activism" with legislative activism, Mrs. Cheney's subtler federalist position was echoed not only by prominent Republican Sen. John McCain, but also for many years by her own husband.
What is it about marriage that so confounds and arouses the political sensibilities of civil society? For millennia, state interference in man's primal social institution has been a source of inspiration, tyranny, and legend. In A.D. 249 St. Valentine, a Roman cleric, was imprisoned and executed for his opposition to Emperor Claudius' decree that young men (his potential crop of soldiers) could no longer marry. Nearly 2,000 years later, the California state Supreme Court faced political martyrdom when it struck down a ban on interracial marriage, crushing two centuries of institutionalized racism. In contradistinction to an ideology that would blame all of marriage's problems on the state, writers from Shakespeare to Kate Chopin have noted the problems of societal pressure on the most sacred of human institutions.
In his new book, "Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America," Jonathan Rauch, a writer at National Journal and The Atlantic Monthly, carries the torch of marital revolution by making the case for gay marriage at a time when the topic is perhaps the hottest cultural issue in the nation. Building on a wealth of historical precedent, statistical support, and old-fashioned reason, Rauch pieces together a lawyer's case for the inclusion of homosexuals in American civil marriage, and attempts to dispel the idea that gay marriage is a purely "civil liberties" dilemma. Rauch attacks the strongest arguments of his opponents, both conservative and liberal, maintaining his place as one of the pre-eminent journalists and essayists of the 21st century.
|
| The denial of marriage rights to an entire subset of human beings is precisely what should encourage Hayekian political evolution.
|
|
Rauch's work is a well-written and thorough defense of marriage itself. The first two chapters ("What is Marriage For?" and "Accept No Substitutes") explore the importance of marriage in modern society and argue for broadening the institution to include gay couples. To Rauch, marriage is much more than a "contract between two people" or a "package of benefits" (p. 31). It is the fundamental institution of civil society. It is the foundation of the family structure. It ensures the persistence of a reliable caregiver in times of illness and old age. It settles the populace, particularly young men, and discourages irresponsibility and sexual promiscuity.
As Rauch sees it, marriage is a cohesive of monumental proportions — binding society at a macro level and granting hope and security to those who choose it. However, it is also indescribably complex. "We can't preserve the marriage mystique if marrying is just one of many arrangements people make to express their fondness for each other or to link their bank accounts," Rauch contends (38). Marriage is not just a contract. It is a primal social bond with positive externalities both for those who enter into the agreement and for the society in which the agreement is made. Rauch's social case for marriage is persuasive, and throughout he reiterates that these benefits extend to homosexual as well as heterosexual relationships.
"For eons, human communities have favored more marriage over less," Rauch writes. "They have believed that marriage is a powerful stabilizing force: that it disciplines and channels crazy-making love and troublemaking libido; that stability and discipline are socially beneficial, even precious. . . . Why should homosexuals be the one exception?" (8081) His analysis is simple: marriage is good; if homosexuals are permitted to marry, there will be more marriage; this increase in marriage is good for all parties involved. This, Rauch argues, is why marriage is good — good for gays, good for straights, and good for society.
| To Rauch, it is the marriage license, not the private commitment, that formalizes the marriage bond.
|
|
It is not a radical position. Rather, it employs a kind of Midwestern, sincere, traditionalist rhetoric that challenges the conservative opposition on its own turf; and while his basic position is as simple as his thesis — "Let everybody marry" (54) — the analysis carefully woven to support this contention and counter the opposition is both smart and laden with Rauch's characteristic charm and subtlety.
Rauch argues that marriage might eliminate the more unsavory portions of the gay sexual underworld — a problem, he contends, created not by homosexuality, but by the repression of homosexuality. To assuage the fears of those who believe marriage must concern itself solely with the propagation of the species, Rauch cites data on adoption by gay couples and reminds readers that many heterosexual couples do not have children. He argues against a marriage based on exclusion — an institution defined more by the absence of homosexuals than by the presence of any positive principle — in favor of a marriage founded in responsibility, fidelity, and trust. Civil unions and other forms of "marriage lite" are inadequate to this purpose, Rauch notes, because for several thousand years there has been no effective substitute for marriage; without real, civil marriage, homosexuals can never experience equality with their heterosexual peers — an equality guaranteed by the Declaration of Independence.
Perhaps more compelling is Rauch's philosophical support. According to Rauch, "there are only two objections to same-sex marriage which are intellectually honest and internally consistent. One of these is the simple anti-gay position: 'It is the law's job to stigmatize and disadvantage homosexuals, and the marriage ban is a means to that end.' The other is the argument from tradition. . . . marriage is as it is, and you can't just make it something else" (160). To the delight of libertarians, Rauch terms this second position the "Hayekian argument" and spends significant time countering it.
Building upon the cautionary conservatism of Edmund Burke, Rauch notes that Hayek believed in the necessity of tradition, and saw the arrogance of central planning as a "fatal conceit." No one is smart enough to replace all of the complexity of history with some witty or intellectual abstraction, and sometimes institutions should stay the way they are precisely because, after 4,000 years, that is still the way they are.
Acknowledging the authority of this traditionalist argument is a brilliant move. It enables Rauch not only to portray himself as open-minded, but bolsters his own position. The traditionalism of Hayek, Rauch argues, is not inflexible. Rather, it encourages slow and careful change where institutions are fundamentally at odds with the rights of individuals; and Rauch argues that the denial of marriage rights to an entire subset of human beings is precisely the kind of impetus that would encourage Hayek to allow for political evolution.
It is in this conservatism that Rauch finds a solution to the gay marriage dilemma. Siding with caution and limited government, he boldly rejects both judicial activism and federal legislation. His solution: in the words of Lynne Cheney, let the states handle things.
| Rauch's argument attempts to bring one more social group under the state's benevolent control.
|
|
For libertarian readers this federalist approach is alluring. In his fight for civil liberties Rauch refuses to allow the personal inconvenience endured by him, his partner, and other gay people to override his respect for Constitutional republicanism. How-ever, as appealing as it may seem, at the base of Rauch's otherwise persuasive case is a soft and subtle statism that presents a quiet threat to individual liberty.
Rauch's call for federalism and for the extension of marriage "rights" is one thing, but what precedent does his positive, conservative, and ultimately state-centered approach to the defense of same-sex marriage set for future marriage debates? Rauch contends that gay marriage is the last step on the road to marital equality in the United States, but is he right?
Throughout "Gay Marriage," Rauch argues vehemently against lifting state restrictions on other outlawed marital unions. To him, there are no reasonable arguments for polygamy, incest, and bestiality; however, it is precisely Rauch's willingness to relegate marriage to the supreme authority of the state that threatens to perpetuate the governmental tyranny that forced the "marriage debate" in the first place.
Nowhere in the Constitution is marriage mentioned — a testament to the foresight of the Founders. However, Rauch's argument depends on the belief that society has a compelling interest in controlling marriage, and that it is the place of government to sanction this control. To Rauch, it is the marriage license, even more than the private commitment, that formalizes the marriage bond. He lightly brushes off the idea of privatizing marriage, contending that the gay marriage ban, at present, is the only problem with state-sanctioned marriage (other than no-fault divorce), but his reassurance rings hollow.
The fundamental problem is not the gay marriage ban, but the very authority of the state to enact a ban. The abuse of marriage law did not start with the American homosexual community, and it will not end there. For thousands of years, rulers have misused marriage. In Russia, serf marriages were controlled and assigned. In the pre-Civil War United States, slaves were denied marriage simply to iterate the authority of their masters and to prevent the formation of strong family bonds. And, while the ban on gay marriage is the most glaring example of government interference in marriage today, to assert that it is the only example is deceptive.
In 30 states, mentally disabled people can be denied marital union. In almost every state, the judicial system must determine whether young people under the age of 16 may marry even with parental consent, and polygamy and incest are banned across the nation. Marriage licenses often require blood tests, and those who perform ceremonies must be licensed; and while Rauch attempts to brush off the injustice of this interference, it is important to remember that at the time the California Supreme Court overturned the ban on interracial marriage, homosexual marriage seemed as perverse and unimaginable as polygamy or incest does today. By relying on an argument of social good, Rauch engages in a little central planning of his own — declaring what is "Good for America" — and, in the process, subjects himself, voluntarily, to the very governmental tyranny that relegated the gay community to two and a half centuries of marriage-less existence.
Granted, privatizing marriage may be politically impractical (or impossible), and Rauch's position may be the best pragmatic response to the marriage ban; but his argument goes the extra mile to affirm not only the state's right to govern marriage law, but the necessity of that governance. And if his analysis prevails, the argument for a principled libertarian objection to future regulation will be crippled. At least a civil-liberties defense of gay marriage would serve to decrease the power of the state. Rauch's argument attempts to bring one more social group under its benevolent control.
On July 14, a procedural motion was voted down 5048 in the Senate, which for all intents and purposes meant the Federal Marriage Amendment was defeated — presumably as Lynne Cheney and Jonathan Rauch cheered, and as gay marriage inched one step closer to reality. But what might the future hold for these marriage wars?
At the beginning of his book, Rauch issues a challenge to those who would oppose same-sex marriage and cling to the status quo: "The days when homosexual unions — marital and nonmarital — were invisible are gone, and gone for good. Homosexual relationships will enjoy increasing social recognition and respect even outside of marriage. If your first choice is for the whole gay thing to go away, remember that children can demand their first choice or nothing, but adults must often deal in second choices. If you can never accept same-sex marriage as just or moral, I ask you nonetheless to consider: If gay marriage is outlawed, what will come in its place? The world is changing, and marriage, like it or not, is changing too" (9).
If court rulings in Massachusetts and Senate votes on the FMA are any indication, the world is changing, and marriage is changing with it. With continued state interference, however, one has to wonder if some things will always be the same.
|
| | | |
|
