National Review notes that a lot of wealthy Republicans in New York helped to fund the same sex marriage campaign which recently resulted in the adoption of a state law permitting them, and it quotes one hedge fund manager saying, “I’m a pretty straight down the line small government guy, but this is an issue of basic freedom.” No, it’s not, but give credit to the radical gay rights advocates who are winning the hearts and minds of Americans with this notion that it’s a civil rights issue. I have discussed the phenomenon of the “procedural republic” in a number of instances. It occurs to me that the same sex marriage issue is the procedural republic at work at its best (or worst).
The procedural republic is best defined by Michael Sandel, who wrote Democracy and Its Discontents, the seminal work on the subject, as the public life that is informed by the liberal notion that asserts the priority of fair procedures over particular ends. It further asserts that citizens are free and autonomous selves, unencumbered by moral or civic ties they have not chosen. Its rival public philosophy is republican political theory, which asserts that citizens cannot be neutral towards the values and ends its citizens espouse. It regards moral character as a public, not merely private concern, while the procedural republic requires that morality be omitted from public policy deliberations. The classic expression of the procedural republic is the so-called “mystery passage” in the 1992 Supreme Court decision in Planned Parenthood vs. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”.
The conflict between these two political philosophies is essentially the story of the culture war of the past several decades, in which same sex marriage is but one manifestation of the battle (the recent Supreme Court decision on videogames is another, about which more later), and it will not come as a shock that I am of the republican political theory persuasion.
Years ago, I had a dialogue with a subscriber that was one of the most rewarding since I began the publication. He and his grown son, who is homosexual, wrote a thoughtful response to my essay on same sex marriage (Same Sex Marriage Confusion, August 2004), to which I responded as follows, which helps to frame what I believe to be the core issues in this debate:
You are correct that I cannot find any compelling argument that homosexuality is an innate and irreversible condition. I have read extensively on this question, and I have found no source that makes the case that the condition is deterministically genetic, nor do I know of any report of the discovery of the “gay gene”. I am persuaded that, as with many other conditions, there exists a genetic predisposition to homosexuality to varying degrees in many people, and that this predisposition is either nurtured, enhanced, and accommodated, or discouraged, repelled, rejected, and overcome, as the case may be, by temperament, environment, consultation, and preference. If I stand corrected on this point by evidence I have missed, please inform me.
This characterization is useful primarily for distinguishing a set of rights based on sexual orientation and preference from those natural and civil rights claimed by all persons irrespective of race and ethnicity, but has no bearing for me on the question of same sex marriage except to counter the analogy to the battle for civil rights on the part of racial minorities. My position here would apply even if the homosexual condition was proven totally genetic. Remember that Martin Luther King was not asking for new rights that were not already entrenched in our founding principles, but rather the restoration and actualization of these rights.
Marriage is, as your son suggests, about love, but it’s also about much more than love. It’s about procreation, and many have suggested that marriage would not exist if the conceiving of children were not a regular consequence of heterosexual sex. In fact, the decline of heterosexual marriage seems to coincide with the acceptance in society of the separation of sex from procreation and marriage from parenthood, not positive developments for the institution of marriage or for children. The institution of marriage ennobles the biological bonding of a relationship that at least holds forth the potential for procreation and, if for no other reason, deserves the protection of the law to avoid further removal from its orientation toward the rearing of children. As a conservative, I am tempted by the contention that same sex marriage would be a positive development for the institution of marriage, but this ignores the philosophical argument, particularly the Aristotelian theory of natural teleology that has stood the test of time–that the function of something can be ascertained by what it exclusively does. Thus human sexuality cannot be understood apart from procreation. This is a philosophical argument, not a theological one. The biological unity that is the foundation of marriage derives its value and significance from this purposeful function, whether or not children actually result from it; no matter how loving the relationship, homosexuality cannot aspire to this unique relationship.
Further, as Maggie Gallagher of the Institute for Marriage and Public Policy notes, historically, marriage was not just a matter of private taste, or a values issue, or even a religious issue in America, it was one of the handful of core social institutions that make limited government possible. In this view, shared family norms enshrined in law were at least as vital to the republic as norms about property rights and democratic government. Think about the case of Utah, which was obliged to revoke its laws permitting bigamy in order to join the union.
As with so many of the battles in the contemporary ‘”culture war”, the Founders saw no need to directly infuse the Constitution with the moral order which is so necessary for its sustenance, because they assumed that it was a given that the republic they were founding could not possibly survive without a grounding in natural law, natural right, and the nature of man (including the teleological nature) that they took for granted. They could not have conceived of the “mystery passage” of the Planned Parenthood vs. Casey decision of 1992. Such an unencumbered, autonomous individual would have been a stranger to them.
This leads to the second part of the issue–who decides? I have often written of the threat to democracy posed by the hyperactive “rule of judges” and its potential for judicial tyranny, and I wish that this issue could be decided by the people in the several states, just as I have suggested that the abortion question be returned to the state legislatures. Alas, Roe vs. Wade rendered the latter impossibility for the foreseeable future (the recent vote in New York notwithstanding), just as I feared and warned that the Lawrence vs. Texas decision might begin to circumscribe the democratic process for the homosexual rights issue. And, sure enough, it didn’t take long for four Massachusetts judges to pre-empt the democratic process on same sex marriage. The problem this time is the “full faith and credit” clause of the Constitution, which will ultimately force the U. S. Supreme Court into jurisdiction unless it is precluded by the limitation of its jurisdiction by Congress or a constitutional amendment.
As for civil unions, although this seems to be a reasonable compromise, I tend to agree to some extent with Charles Murray, who notes that these constructs would have the effect of further undermining marriage by allowing heterosexuals the benefits of marriage without the covenanted commitments, compounding the problems created by the advent of “no fault” divorce laws. However, I must add that I haven’t as thoroughly thought through this, I don’t feel as strongly about civil unions as marriage, and I suppose that I could be convinced of their utility as a compromise by a properly structured law permitting them. Natural law scholar Robert George offers a possibility in the form of certain forms of domestic partnerships that could be authorized by the states, available to people based on needs, not on sex (widowed sisters living together, etc.)
In short, this is not about equal rights, but about whether or not we can sustain a federal republic under the rule of law, or whether or not we will allow the critical issues involving who we are to be determined by judicial fiat. This is why we conservatives can make exception to our normal aversion to amending the constitution in the case of defending the institution of marriage, because the creation of a “right” to homosexual marriage undermines a major element of the order necessary to sustain republican principles. I wish there was another answer.