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What’s Wrong with the World is dedicated to the defense of what remains of Christendom, the civilization made by the men of the Cross of Christ. Athwart two hostile Powers we stand: the Jihad and Liberalism...read more

Justice and the Whacky World of Legal Sex

by Tony M.

As is usual for the Jesuits post-1965, they continue to muddy waters and cloud minds by pretending to play both sides of every coin, fence, and issue. But they don’t really HOLD both sides, and so their sometime façade of even-handed neutrality always has holes in it. Regarding Obergefell, this editorial by young Jesuits (in training) makes the usual hand-waving for appearing neutral:

For those who support it, yesterday’s ruling is against injustice and for equality. It is not, by any stretch of the imagination, against religion and for immorality. And there’s a danger if religious voices continue to react as if advocacy for same-sex marriage is in itself a form of religious persecution. It simply is not. The motivations don’t match religious persecution, and neither does the end result. To equate what many perceive as correcting an injustice with religious persecution is to invite that persecution.

Notice the distancing of “for those who…” and “what many perceive” from the editorial self? But are they really neutral? Not hardly:

Many of us know people in same sex relationships of authentic love. We have come to understand that love, fidelity, and mutual commitment are worth being grateful for, regardless of the genders involved. We know the real hardships our loved ones suffer on account of not having the same rights as their heterosexual counterparts – whether through actual discrimination on the part of the government or through internalized perceptions of inferiority and worthlessness.

As expected, the supposed neutrality of the liberal simply shrugs away definitive Church teaching that the kind of “love” that holds between active gays and lesbians isn’t actually love at all, it is something else. Our young Jesuits would have scolded Jesus when he tells the adulteress to “go and sin no more,” and when he calls the Samaritan woman at the well - who He says “had five husbands, and the man you now have is not your husband”- away from adultery and fornication. True respect for gay people cannot allow us to pretend that years of dedicated living out a sinful desire that rejects God’s idea of love is, actually, love.

So, was it really a matter of justice that gays have recognition for same-sex “marriage”?

To answer that, I suggest that we first look at some simpler questions.

Why does the state have marriage as a civilly recognized status at all?

Why does the state care if you have sex with someone?

Why does the state care if you publicly declare your interest in living with someone?

Why does the state care if you design to make a joint living arrangement permanent (or quasi-permanent) or not?

Why should the state set forth qualifying parameters for contracts of these matters? Why not let you design your own contract, and call it “marriage” if that’s what strikes your fancy? Why does the state care if you call a car sales contract "marriage"?

These are personal matters. Why is it a state matter? If you want the state to care, you have to show a reason.

Everyone knows the reason, deep down: children.

The tie-in between having sex and begetting children is the prime reason the state takes an interest. This is true from 2 angles: the state has a role in promoting the good of all of its members, and children are members of the state. Secondly, the state needs children to become its future generation of adults, so it needs children both being born and being raised well. The state has a critical interest in children. And the latter doesn’t happen all by itself without anybody paying attention to it, so the state pays attention to it, in part by paying attention to the former: the begetting of those children.

Since sex is where children come from, the state cannot but have an interest in the baby-producing sex decisions of its people. This was manifestly true before effective contraceptives were around. It remains true today, not least because every form of contraceptive has failure rates. If the state can have an interest in making you wear a seatbelt because in 1 out of 5,000 rides in a car you will likely be in an accident, then it must surely have an interest in the children that will be conceived in the much more than 1 of every 500 liaisons “protected” by contraceptives (between a man and woman both fertile).

That’s the non-moral aspect of the state’s interest. As such, even in a society that doesn’t think sex “outside of marriage” is morally significant, the state would still have an interest.

Historically, nearly all peoples have indeed had rules that said “sex outside of X limits” is wrong. Not just “against society’s rules” but also “morally wrong”. Those rules may have had some variation, but they also had a very great deal of consistency between different social groups. Here are 2: sex before marriage (fornication) is forbidden. Sex with a married woman by a man not her spouse (adultery) is wrong.

Again following the historical pathway here, most societies have proscribed adultery and fornication because those societies were stating allowable parameters for sex, i.e. PERMISSIBLE sex: given that babies come from sex, and that many or most adults will have a high inclination for sex at least intermittently, society has an interest in promoting the single most effective civil practice ever known for raising children well: the family. And thus, the social view was generally that sex is socially permissible within the marriage as the foundation of the family, and ONLY within the marriage, not otherwise. (That is, promoting that people form families is the other side of the coin of prohibiting sex outside of marriage, and thereby prohibiting that people have kids outside of families). Statutory constraints are of course a subsequent way of making effective the prior existing social rules for same: LEGAL sex is just the socially permitted sex enacted into law. In designing that children always be born into the pre-existing family of its married parents, society (and the law) prescribed that sex legally takes place only in marriage.

Notice, though, that the entire fabric of society (and the state) even having ANY interest at all in your sex life is its relationship to children. Absent a state interest in the children that arise from having sex, (and without a distinct moral view of sex), there is no rationale for a state interest in the matter.

I haven’t said anything about whether the state really does have any authority to limit people having sex by law. It was, until late last century, taken to be a given, and the social fabric (and legal fabric) was based on that assumption. My point here isn’t to debate whether that authority exists, it is pointing out that the ISSUE DOESN’T ARISE without the connection of sex and having / raising children, and society’s interest in those kids.

But all of state law about marriage is simply spinning out that basic question “are you allowed to have sex, and if so, with whom.” If there is no authority in society for speaking to limits on your sex life, there is no rationale for state recognition of marriage, for the civil point of recognizing marriage _consists_ in setting out rules limiting your sex life.

So, there is a deep incoherence in the state denying any role in telling you whom you may or may not have sex with, and yet having a civil category of “marriage” about which it makes rules deciding who may and who may not get the status named “marriage”. The whole point of society having an interest in marriage rests on society having an interest in limiting your sex life for the sake of children. Getting rid of laws against sex outside of marriage, but keeping marriage as a statutory entity is incoherent. That’s like eradicating the category of recyclable bottles (remember the old coke bottles with 3 cent deposit?) but KEEPING the rules about the deposit on same. Huh?

Obviously, there is a fundamental incoherence in society having any interest in promoting the sex lives of people who choose to commit to sex that cannot even in theory result in children. Such relationships have ALWAYS been understood as non-marital precisely because there is no connection between such acts and children, and “marriage” (as recognized by society) is the social arrangement society uses to make sure people only _beget _kids_ within_ families. It would make as much sense as awarding “marital” status to a baseball team. Society as a public reality isn’t interested in your sex life simply for its own sake, and never was. (After all, the state doesn’t go out and scrounge up a mate for you if you aren’t succeeding on your own – that you don’t have much of a sex life is not a matter of distress on the part of the state.)

Other legal changes are also incoherent with this backdrop: the good of marriage for children is based heavily on its permanence. No-fault divorce is an intense attack on any social concept of marriage as permanent. There is no other contract for which the state will say “oh, one party wants out, so OK, we will dissolve the contract.” And undermining the very permanence that gives marriage most of its particular benefit for the sake of children cannot improve the state of children or society.

The awarding of paternal rights over a child to unwed fathers (as a right rather than in pursuit of the best balanced interests of all parties) is also incoherent. “Civil marriage” is the social construct by which society says “sex is only legal within certain limits, for the good of the children,” and so having sex outside those limits doesn’t get you marital rights. And a father’s natural right to custody over (and a moral and social relationship with) the child is primarily rooted in marriage, not sexual choices in defiance of marriage.

So, now we can answer the question in a straightforward way: No, 2 people of the same sex have no right as a matter of justice to have society grant them the social recognition of “marriage” because their relationship has no bearing on the root purpose of “marriage” as a social status. Just as a baseball team, and a limited partnership, and 2 straight bachelors sharing an apartment together for a 1 year stretch, have no right as a matter of justice to have society grant them the social recognition of marriage.

Shall we now hear much of sad tales, full of sound and fury, signifying nothing?

Comments (48)

Activate auto-response generator (choose all that apply):

1) Marriage isn't just about kids anymore. Our society has evolved, and now it's about recognizing the love and companionship two people (for now) share. If it was really about kids you wouldn't allow infertile or elderly couples to marry, but you don't oppose that. Your opposition is really about homophobia, bigot.

2) If marriage is about kids, then it was straights who killed it with no-fault divorce, contraception, and abortion. Picking on gays is closing the barn door after the horse escaped. Your opposition is really about homophobia, bigot.

3) Your opposition is really about homophobia, bigot.

Exactly.

Why does the state care if you have sex with someone?

Then why the laws against unnatural sex that used to exist almost everywhere (and still do in large parts of the world-particularly India, the Moslem world and Africa) and even in the laws given to Hebrews.

Thus, the state does care about certain types of carnal acts in themselves.
The question is why. Of course, the Religious Right in America lost this particular fight long ago. Probably no trad-con would even imagine to reinstate criminalization of carnal acts against the order of nature. Indeed, the Religious Right generally speaking is offended by continuing criminalization elsewhere in the world. It is only a matter of time the US Army is on the march to crusade for gay rights in homophobic nations.

Then why the laws against unnatural sex that used to exist almost everywhere (and still do in large parts of the world-particularly India, the Moslem world and Africa) and even in the laws given to Hebrews.

I did refer to the above as getting at the "non-moral aspect" of the state's interest. These are the reasons that cannot be disputed by people who hold to different (or no) moral concept of sex. Of course there are moral reasons for the state being interested in sex, and of course something as integral as sex has an important moral facet in human life.

So I will take this opportunity to state, AGAIN, that the fact that some people dispute moral reason X that the state has for doing Y does not imply that the state has no compelling or legitimate interest in Y. It means that the state has a DISPUTED reason X for doing Y. The liberal courts have effectively repudiated (traditional) morality as a rational basis for state action, even while upholding their own moral reasons as a "legitimate" basis.

It is not, by any stretch of the imagination, against religion and for immorality.

Is not the practice of homosexuality, by its very disordered nature, "against religion and for immorality?" By what "stretch of the imagination" can homosexual marriage be perceived as not an injustice against morality and religion?

"1) Marriage isn't just about kids anymore. Our society has evolved, and now it's about recognizing the love and companionship two people (for now) share. If it was really about kids you wouldn't allow infertile or elderly couples to marry, but you don't oppose that. Your opposition is really about homophobia, bigot."

This is ipse dixit. You assert that marriage is not just about kids, without defining marriage. Who said that society gets to define marriage? You imply this without proving it. Just because society asserts something, does not make it true. If society wanted to define pi as 3, would that make it true? Society gets to establish benefits after marriage has been established by other means.

Love means to will the authentic good of another for their sake and God's and authenticity, another name for truth, cannot be decided upon. It is context-insensitive. The idea that society or an individual gets to define their own definition of marriage is Modernism, nay, post-Modernism carried to an extreme. People do not decide the truth. Period. As for infertile or elderly couples, there are examples where, historically, such people have defied the odds and had children. Marriage is about being open to children, not the actual act of having children. If that were the case, then would a fertile couple who tried, but never had children be said to be married? Of course, because they are open to having children in every marital act, whether or not children actually result. In homosexuality, there is no openness to children by the natural marital act, because there is no natural teleology in the act to produce children. Marriage is a teleological relationship with regards to children, not an absolutist one. Homosexuality relationships are non-teleological with respect to children.

Again, the idea that marriage is true if it feels true is post-Modern, selfish drivel.

As for homophobia, the concept is vacuous. The real fear is about sin. If you feel that homosexual acts are not sinful (note: I did not say inclinations, in themselves, which, while disordered, are morally neutral until acted upon), that is another discussion, but fear of sin is not wrong. Indeed, it is a salutary thing. You want to redefine sin, but that is a matter that will have to wait until you have an encounter with a burning bush and can call on the God of Moses, by the same name (which has been lost to history), to justify your position. The Ten Commandments have not been changed nor abrogated. Just as there is a Law of Conservation of a Energy, just so, there is a Law of Conservation of Commandments. They both express the will of God manifesting itself through nature.

The Chicken

The awarding of paternal rights over a child to unwed fathers (as a right rather than in pursuit of the best balanced interests of all parties) is also incoherent. “Civil marriage” is the social construct by which society says “sex is only legal within certain limits, for the good of the children,” and so having sex outside those limits doesn’t get you marital rights. And a father’s natural right to custody over (and a moral and social relationship with) the child is primarily rooted in marriage, not sexual choices in defiance of marriage.

One could also point out that the mother's claim to maternal rights is equally rooted in marriage. People often make the mistake of confusing the tribe/nation's tolerance of unwed mothers keeping their children for a right when it is merely a privilege to spare society the cost of finding a whole new home for the child. The custody claims of unwed mothers, like those of unwed fathers, exist only at the sufferance of the community and the continued lack of marriage constitutes the only claim society needs to prove a lack of counter-balancing authority over the child.

Speaking of marriage, this article made me laugh my ass off earlier today. Couldn't happen to a better batch of people if you ask me.

Masked Chicken - I completely agree with Tony's post and am opposed to the progressive redefinition of marriage. My post was a tongue-in-cheek representation of what proponents of legal sodomy would say. Online sarcasm can be difficult to convey.

Yeah, I thought it might be sarcasm, but on the off chance it weren't...(sadly, you can't tell, these days).

One way to indicate sarcasm is with the tag, which causes the text to blink, like in days of yore (not really, but it should).

The Chicken

I actually tried to put a sarcasm tag in the text, but it server rejected it :( Apparently, sarcasm is not allowed on the Internet .

The Chicken

Amazing. I can't even indicate a sarcasm tag. It refuses to print it on the screen :(

The Chicken

You mean like this? <sarcasm/>?

Use &lt; and &gt; to represent the less than and greater than signs. You have to escape the characters.

CJ, not to worry. At the first moment I read your comment, I was unsure, but well before I finished it the second time I was pretty confident it was sarcasm. Which is why I responded "Exactly".

Maybe we can standardize our own sarcasm tag that is a little less clumsy (and fewer characters) than <sarcasm/> Or maybe just use the ;-) wink emoticon, it's a pretty close indicator for it anyway.

One could also point out that the mother's claim to maternal rights is equally rooted in marriage. People often make the mistake of confusing the tribe/nation's tolerance of unwed mothers keeping their children for a right when it is merely a privilege to spare society the cost of finding a whole new home for the child. The custody claims of unwed mothers, like those of unwed fathers, exist only at the sufferance of the community and the continued lack of marriage constitutes the only claim society needs to prove a lack of counter-balancing authority over the child.

I suspected this would come up, Mike. I actually intend another post, in a week or two, more directly on this topic, so I would rather not go into detail here. However, for the moment, I think it is sufficient to merely point out that (a) although the full extent of maternal rights over a child belong in marriage and are not automatic to an unwed mother, that does not of itself say whether there are some rights that belong to an unwed mother merely from bearing and birthing the child. And if there are such rights, then (b) those rights presumably would not have any applicable analogue for the unwed father. There is, at the least, room for doubt about whether custody claims of mothers exist only at the sufferance of the community, and the two biological parents are not exactly the same in this respect. (Heck, they are not exactly the same EVER, that's part of what complementarity implies.)

For those who support it, yesterday’s ruling is against injustice and for equality. It is not, by any stretch of the imagination, against religion and for immorality.
By what "stretch of the imagination" can homosexual marriage be perceived as not an injustice against morality and religion?

Lauran, you have put your finger on one of the incoherencies in the Jesuit editorial. The second sentence really is only possible by pretending that it comes forth from the mouths of "those who support it", not as a GENERAL commentor of no persuasion. It is thus completely unpersuasive, for those who DON'T support it, in claiming that

To equate what many perceive as correcting an injustice with religious persecution is to invite that persecution.

It is also a complete lie to pretend that a federal court imposing on all 50 states that they must recognize gay "marriage" is not effectively religious persecution. Immediately upon the ruling came questions as to the status of state officials involved in that "recognizing" whose religion forbids them from pretending gay "marriage" is marriage. Gays don't want just to achieve that their own friends say they are married, they want the STATE to say they are married, and thus for SOCIETY to say they are married, and to get all the benefits of all the persons in society at whose hands the benefits of marriage are delivered, and thus to get ALL THOSE members of society saying "you are married". Including those for whom saying that violates their religion. Make no mistake: gays are perfectly ready to impose a religious test, not only for state and federal officials, but ALL persons in society, for whom saying "because you are married, X" is part of carrying out their job.

Gays don't want just to achieve that their own friends say they are married, they want the STATE to say they are married, and thus for SOCIETY to say they are married...including those for whom saying that violates their religion

Exactly, Tony. Marriage wasn't originally defined by any State, so from where has the State received the authority to redefine it? As for Society, "The opening gambit is a plea for tolerance, but the end game is a bayonet."

The Jesuit's cowardice, by any other name or however verbose, is still arrant cowardice.

that does not of itself say whether there are some rights that belong to an unwed mother merely from bearing and birthing the child.

There certainly are, but then drug dealers have a degree of natural rights over their illicit property due to possession, the mixing of labor with materials to make it, etc. That doesn't imply that their basic natural property rights survive the nation's authority over them du to the nexus of those property rights with a grave moral violation.

I'd also add to your point about no-fault divorce that the claim that paternal rights are tied to marriage means that no-fault divorce allows the revocation of paternal rights at any time, for whatever reason the mother chooses. This is why I have asserted contra Lydia on this site that men literally have no formal rights under law in family law matters anymore. Women effectively have plenary authority over the role the father(s) of their children play in the lives of those children. I also don't think society is prepared to understand the concept of a father's rights being tied to marriage in any healthy fashion under this understanding of marriage.

Mike T,
"Illicit property" is an oxymoron. If possession was to give title, there could never be a something called theft.

Marriage, being a social reality, naturally the gays would want all SOCIETY to recognize their marriage. Otherwise, they are not really married. A society in which a couple could deemed married by some, and not by others, such a society I doubt has ever existed.

"Illicit property" is an oxymoron. If possession was to give title, there could never be a something called theft.

Title is a legal distinction that is not a requirement for a natural property claim anymore than a marriage license is a natural requirement for marriage. It's perfectly possible under the natural law to come to a natural property claim over a batch of crystal meth, marijuana, cocaine or moonshine. That doesn't interfere with the state's ability to limit or abolish a natural property claim when the property claim is incompatible with the common good.

From a political strategy standpoint gay individuals and couples won the right to adopt children and this was widely accepted at the state level long before gay marriage. So they blunted the force of the claim that their relationships cannot involve raising a family. Recent Census data shows about 19,000 adopted children living in gay households.

The Ten Commandments have not been changed nor abrogated.

So you want to make it illegal to work on the Sabbath?

Marriage, being a social reality, naturally the gays would want all SOCIETY to recognize their marriage. Otherwise, they are not really married.

I wonder what would happen if you told Rush Limbaugh that his fourth heterosexual marriage isn't a "real" marriage and then refused to provide a business service because of his state of sin.

I wonder what would happen if you told Rush Limbaugh that his fourth heterosexual marriage isn't a "real" marriage and then refused to provide a business service because of his state of sin.

Well, it's not like he has a phone line you could call and ask or anything like that...

Probably some variation on theme of "I disagree with that view, but I'd just find another business."

I wonder what would happen if you told Rush Limbaugh that his fourth heterosexual marriage isn't a "real" marriage and then refused to provide a business service because of his state of sin.

I love it, Step2. Let's try it and find out.

From a political strategy standpoint gay individuals and couples won the right to adopt children and this was widely accepted at the state level long before gay marriage.

Right you are, in the sense that they achieved the legal ability to adopt. (I just won't call it a "right" without putting it in quotes.) It remains true, however, that nothing about their sex lives contributes to bringing children into the "family" so formed. So it remains to be stated why the state would care about their sex lives. Apparently two siblings who are not having sex can adopt a child too, and nobody cares that they aren't having sex, and nobody expects them to be married together. The lack of a sexual relationship or marriage isn't an impediment or problem. So, why does the state want two gays raising a kid have "marriage" appended to their names?

Again: marriage as a CIVIL institution is because marriage is a way for society to constrain having child-producing sex to a family. Take away the issue of child-producing sex, and the rationale falls to ruins. Appending "marriage" to two gays' sexual relationship doesn't help carry forward that civil purpose at all.

I will also point out that it is almost completely the case that in our society, babies are adopted out from the birth mother because there is NO father-mother-in-marriage relationship between the biological father and mother. If society were to have stuck to the traditional stance about when sex is permissible, almost no gays would be able to adopt in the first place because there wouldn't be all these babies born out of wedlock.

So you want to make it illegal to work on the Sabbath?

So, you want to pretend that in an officially non-confessional society, there is no intelligible difference between the state upholding the ceremonial precepts of the Mosaic Law, and upholding the natural moral law precepts of the Mosaic Law? Yeah, that's a real good parallel.

There certainly are, but then drug dealers have a degree of natural rights over their illicit property due to possession, the mixing of labor with materials to make it, etc. That doesn't imply that their basic natural property rights survive the nation's authority over them du to the nexus of those property rights with a grave moral violation.

I am sure we are all clear that natural rights over a child and natural rights over property stand somewhat differently to state authority. So we already know that it's going to take careful parsing out for how far state authority should run in making limits on the natural rights over a child. So let's leave that for the next discussion, OK?

I'd also add to your point about no-fault divorce that the claim that paternal rights are tied to marriage means that no-fault divorce allows the revocation of paternal rights at any time, for whatever reason the mother chooses.

Almost all societies, including this one have always treated (in divorce) the rights of a father who was married at the time the child was conceived and born, with more respect than the rights of a bio-father who was never married to the bio mother. That the current situation is _very_ screwed up, including how courts treat fathers who were married to the mother from conception through birth, is true, but doesn't amount to "revocation" of his rights altogether without any nod to them at all. But again, we can flesh all that out in the next discussion. So Mike, put a lid on it, while you sharpen your knife for later, OK?

free IVF for everyone, cuz equality

"The Nuremberg laws of September 1935 forbade two Catholics to marry if one was racially non-Aryan. By and large the Church bowed to this new law which she had earlier termed an impermissible infringement of her spiritual jurisdiction.
one Catholic bishop, Huedel, actually defended the Nuremberg law".
Paul Johnson, A history of Christianity.

Mike T,
Anybody can assert claims.. But what gives ownership is whether the claim could be justified. In a society, a court is where the claims are ultimately justified.

You insist upon bringing the society and its laws in over the very private matter of a woman giving birth to a child.
But over this very public matter of private property, all this goes into the wind and society and its laws can have nothing over what makes it a natural law property?
Does natural law tell you how much labor mixed justifies a property right over crystal meth?

But over this very public matter of private property, all this goes into the wind and society and its laws can have nothing over what makes it a natural law property?

That's almost precisely the opposite of what I said, Bedarz. In fact, I explicitly said that the state can abolish a natural law property claim if that claim runs contrary to the common good and the state does so through a legitimate act of authority (ie a cop cannot unilaterally enforce the common good outside of the delegated authority of the political system).

By and large the Church bowed to this new law which she had earlier termed an impermissible infringement of her spiritual jurisdiction.

So? What does that signify?

Reasonable people have no trouble understanding that "bowing to this new law" that infringes her jurisdiction is not even remotely comparable to insisting that she bow to a new law that is in direct contradiction to natural and divine law regarding the very nature of marriage. Matters of jurisdiction and discipline are changeable. Not everything is.

You insist upon bringing the society and its laws in over the very private matter of a woman giving birth to a child.

Bedarz, I said we are not pursuing that discussion here. Enough already. Stick to this discussion's topic for this discussion: the matter of justice and whether there is a claim in justice for gays to get the civil recognition of marriage.

To which the answer is, (to put it in yet another fashion): No. Generally law and justice treats people similarly situated the same way, and since civil marriage law's (non-moral) basis is regulation of baby-producing sex, those having gay sex and those having hetero sex are not similarly situated.

Well, it's not like he has a phone line you could call and ask or anything like that...

I'll admit I laughed for a moment. On the other hand, he does have some sort of screening process to mostly get dittoheads on the air.

Probably some variation on theme of "I disagree with that view, but I'd just find another business."

It would likely depend on the urgency and type of business being refused. I am certain if it was a government worker refusing to treat him as legally married, say an IRS agent, there would be major fallout. I also do not believe any of this discrimination would cause Rush to question if he was really married, which is the supposed end game.

So, why does the state want two gays raising a kid have "marriage" appended to their names?

I don't understand the switch in goals. You insisted that state recognition of marriage is only to help provide a stable home life for the child, which is of course a help but not a guarantee, and then suddenly you don't think marriage provides any help. Just to be crystal clear, I'm not saying my position refutes every point you are claiming, only that these cases blunt some of the force by being in fact "child-centric" from the state's point of view.

So, you want to pretend that in an officially non-confessional society, there is no intelligible difference between the state upholding the ceremonial precepts of the Mosaic Law, and upholding the natural moral law precepts of the Mosaic Law?

A command is a command is a command. I was only knocking MC for making an overly sweeping declaration, don't read too much into it.

You insisted that state recognition of marriage is only to help provide a stable home life for the child,

Close, (if we limit it to the non-moral reasons), but not there yet. Civil recognition of marriage is to constrain baby-producing sex to families to produce a stable home for the child. If two gays are going to provide the stable home for a kid without the status, what does the status add? If they are going to adopt a kid from bio-parents who are not married because there was no pressure to marry because we eschew having the state tell us when we can have sex, the civil status of "marriage" already didn't do its job.

Just to be crystal clear, I'm not saying my position refutes every point you are claiming, only that these cases blunt some of the force by being in fact "child-centric" from the state's point of view.

Fair enough. I suppose there could be some truth to the notion that IF the state is going to ignore into oblivion the primary mechanism by which marriage lends support for the family, that doesn't mean it cannot pursue secondary aspects of support for the family. As long as those secondary aspects, when pursued without the primary mechanisms, don't end up actually making things worse with respect to the 98%, all the other marriages.

Would it be outrageous to suppose that maybe the moral reasons come into play here also? Well, the secularist anti-traditional new (subjective) moralists don't think so, and I suppose that the state has to Establish that subjective morality instead of the traditional morality because the state is not allowed to establish anything like morality, because the state has no legitimate interest in morality of any stripe.

On the other hand, he does have some sort of screening process to mostly get dittoheads on the air.

Mostly, but they also seem to screen for people who will rile up the show or let him get controversial. My mother actually got through about 20 years ago on a topic in which they vehemently disagreed. When she was asked where she stood, she told them and they fast tracked her onto the show because they wanted to lighten up on the dittoheads and bring in some fighting and controversy.

Now what would be interesting is to see how a civil marriage that recognizes an invalid religious marriage would be treated by various religious groups.

A command is a command is a command.

Actually, if you're interested in understanding how and why most of the Mosaic Law doesn't apply to gentiles in Christian culture, read the parts of the Book of Acts covering the Council of Jerusalem.


Tony,
Matters of jurisdiction and discipline are changeable. Not everything is.

I give you another example where the pre-political institution of marriage was politically redefined and the Churches could only bow- Adoption of no-fault divorce.

Was this cry of pre-political institution made then?. Yet this change finished off Churches as a regulator of marriages and families. There was a pertinent article at Touchstone site a few months back that American Churches lost their authority when definition of marriage and family was taken away from them. Now the Churches only function as voluntary clubs. The things that matter--status of marriage, divorce, child custody--they have had no say in past 50 years.

Be careful now, BI, you're treading into "put it a lid on it" territory...

I think this statement says a lot...

No-fault divorce is an intense attack on any social concept of marriage as permanent.

It's not an attack on the idea of permanence, but rather marriage itself. It also shows a minimalist understanding of what no fault divorce means for marital rights and authority. There can be no real paternal rights if the mother can just leave and claim child support and alimony. There can also be no patriarchy if the wife can lawfully rebel against her husband and threaten to sic the state on him outside of cases where a grave moral matter is at play.

Now what would be interesting is to see how a civil marriage that recognizes an invalid religious marriage would be treated by various religious groups.

I am not sure what you mean, Mike. Are you thinking, maybe, of a Mormon (or Muslim) wedding that is a man's second marriage? It is religiously allowable to Mormons to have multiple wives (the main Mormon church doesn't do it, but only because it is (was) illegal, and they promote following the law), but Christians won't agree that the second marriage would be valid. I expect that legal restraint (against bigamy) to fall within a few months, the logic is inescapable given Obergefell. Oh, sure, there will be various courts that disagree, but they'll be trampled underfoot by the forces of "me too" in a rush to get their piece of the pie.

I wait with baited breath for when the first line marriage (a dozen or so men and women) all get married. The health insurance and social security implications are wonderfully, maddeningly complex.

The argument that marriage is a pre-political institution and this Courts have no jurisdiction over it should be retired. It has two weaknesses
1) It has never been made clear whether people themselves or legislatures acting for them have jurisdiction over this pre-political institution.
2) Marriage has been politically interfered with. Otherwise, all the cultures and nations would have had a common way of marrying. Clearly, it is not so.

So, the argument should lay stress on the complementary aspect of marriage and not on the pre-political. Political institutions have jurisdiction over aspects of marriage but not over this very essence of the thing which can not be changed without utterly destroying the thing itself.

Tony,

Step2 was referring to the fact that Limbaugh is on his 3rd or 4th marriage, not a matter of polygamy.

BI,

So, the argument should lay stress on the complementary aspect of marriage and not on the pre-political. Political institutions have jurisdiction over aspects of marriage but not over this very essence of the thing which can not be changed without utterly destroying the thing itself.

I think what should be emphasized is that it is a pre-political institution and that makes it not a creature of the state or a social convention. Their jurisdiction and competence is to adjudicate within the bounds of what marriage has always been since earliest recorded history.

One of the reasons I am hostile to the philosophical idea of a "state of nature" is that the evidence around us suggests that not only did it never exist, but that politics, marriage and other institutions are rooted in our biology and nature. They are not something man created, but extensions of what the most primitive men did out of their nature when the first tribes of hunters and gatherers formed.

One of the reasons I am hostile to the philosophical idea of a "state of nature" is that the evidence around us suggests that not only did it never exist, but that politics, marriage and other institutions are rooted in our biology and nature.

Mike, I am glad you said that. There is no historical basis for there having been any sort of real "state of nature".

I do think, though, that it is possible to use the term "pre-political" in a qualified sense for marriage, though: not as existing before in time, but as prior in logical order. Marriage is logically prior to the political, because (among many reasons) the political society is made up, as cells make up the body, out of families. The state can no more decide what it's substrate is, what its own building blocks are, than a car can decide that its body panels can be made of fairy dust instead of something hard like steel-aluminum alloy. (This doesn't imply that the cells pre-exist before the body, or that the families pre-exist before the society.

It is very important to keep saying that the state has no authority over the nature of marriage, that marriage is not simply a convention, that the state's jurisdiction is limited, even if people keep stuffing cotton in their ears because they don't want to hear it. Our own kids, if few others, need to hear and understand the truth. Marriage is NOT a creature of the state even if the state has laws about it. Marriage is a natural organizing principle of man, belonging to human nature, and cannot be re-written because we cannot simply re-make man into something fundamentally other. Of course, the secularists reject man's nature, reject the idea of a human nature, and grasp at the notion that man can be "anything we want to be". I shudder to think what they will say when their efforts arrive at beings made to be slaves from the genes up. Oh, we are already seeing the first parts of that: IVF, genetic modification, surrogacy: people as commodities.

I think the temporal aspect does have some importance because of the argument used today that "marriage has always been a civil institution." That's commonly used to defend the pro-gay marriage argument that religions somehow hijacked a civil institution. That fails in the face of both aspects of it being pre-political. In the temporal side, marriage precedes what we know as civil society. Hunter gatherer societies were made possible by the institution of marriage since tribes are closer to vast extended families than they are to a polis. If anything, civil society has hijacked the institution of marriage from family and religious life.

I am going to introduce what might be a little tangent here. If laws are society's ways of saying "this is when sex is OK", what does that say about sex within marriage?

In the old days, this was taken to mean, among other things, not just that sex was permitted, but more than that, the marriage contract included within it the consent to sex. That understanding now is also being attacked, see story about man charged with rape because his wife has alzheimer's and sometimes doesn't recognize him.

At least as viewed in the Christian dispensation (and given fallen nature), marriage is not solely and utterly about having kids. The licit "use" of sex includes a check on the passions by giving them licit outlet. For this reason (among others) there is a phrase about the "marriage debt", spouses actually owe to each other to have sex with the spouse. This is the reason, for example, that although the Church allowed people to enter into what was called a "Josephite" marriage, (after St. Joseph), intending not to take advantage of the marriage bed, the explicit rules for it required that if either spouse changed his or her mind and wanted the marriage to no longer be josephite, the other had to go along with that, and pay the marriage debt: to get married was to promise to make yourself sexually available (except if impediments outside your control prevent).

This was also brought out in the reference to marriage as a contract. In law, a contract is an agreement with consideration, and in marriage the obligation to be willing to give yourself for sex is that consideration. This is at least part of the underlying ground of the claim by some that it is impossible for a man to rape his wife: she consented by getting married. And part of the reason for all the myriad rules about what happens to dower rights if infidelity is proven: a woman (or man) who gives to some other party what was promised to her husband (or he to his wife) is violating the contract. Spouses have rights to the other's body. One of the formulations of marriage vows includes "with my body I thee worship", as in giving honor in all the ways honor is due "with my body". This attaches to the spouse rights not only in the body but in all things attendant thereon. (And probably implies, for instance, that the husband who makes this vow must protect his wife with his body if necessary.)

If laws provide the placement of allowable sex, then in a sense sex outside of marriage is taking something that doesn't belong to you - even if it isn't rape, the other person hasn't contracted with you to a valid contract that binds the two in such a way as to allow the other rights over your body. Of course, this understanding of marriage law was ditched when the courts threw out laws or convictions against fornication (and when millions of people, over time, decided they didn't want the law observed, either).

Where does it all lead? Well, one possibility is the nonsense of the feminazi wymmin who want each and every sexual encounter to have clear, documented agreement and consent by the woman, at each increase in level of intimacy - or it's rape. If that ever gets generally approved, it will have to be consent by BOTH, man and woman. And given that laws and courts no longer really care about whether you are married or not for sex purposes, it will have to be true for married folk as well as the unmarried, for each encounter. In which, I suggest, you might as well not bother having marriage law at that point. (I assume, by that point, that marriage will also no longer provide any basis for custody assignments by the state.)

Tony,
There is no historical basis for there having been any sort of real "state of nature".

It is puzzling that you decry the state of nature since you do employ it in two contexts, at least.
1) Initial property acquisition
2) Settlement of virgin territories.

Regarding (1) only, you gave an example of a hunter than ventures 50 alone miles from his tribal territory and kills and bring a hunt back to the tribe. Now who owns the meat? Your answer was an unqualified Yes that the hunter owns the meat--the answer depends on Lockean model of property acquisition and the fact that 50 miles from tribal land is supposed to be a "state of nature".

My answer is that the ownership depends on the customs and law of the particular tribe. Maybe the father or the clan-chief owns the meat. Maybe the tribal chief owns 25% and the priest owns 10%.
The general answer that you give depends on the Lockean concepts.

Mike T,
Their the two distinct "states of nature"--Lockean and Hobbesian.
The Lockean "state of nature" usefully describes two situations
1) mutual relations of the sovereigns --"the Princes exist in a state of nature"
2) individuals existing in a frontier-like situation-where two "state of laws" meet and none is paramount.

The state of nature (Lockean) differs from the state of nature (Hobbesian). The Lockean state is rather like of armed watchfulness.
The Lockean "state of war" corresponds more to the Hobbesian state of nature --that is more pertinent to your complaints, I believe.

Marriage is logically prior to the political
There are subtleties here. Marriage is essentially a social reality, not a private contract or even covenant between two individuals that happen to make it in public. We risk getting misled from the atomized conditions of the modern world.

If one means by political-"relating to polis or city" then it is not straightforward to say that marriage is logically prior to the polis. It is only in the polis that marriage can exist in its perfect form.

civil society has hijacked the institution of marriage from family and religious life.

The question only arises in a divided society. Traditionally, civil society and religious life were seamlessly melded together.

Bedarz, you always want it to come down to the main issue you hold differently from that of the traditional, conservative, Christian, pro-state, pro-society position of the contributors here. Well, not all things need to be pushed into that disagreement.

And I won't discuss that here. In fact, I don't think that you can fruitfully discuss it in a commbox at all, and I don't intend to try. So I will make you a deal: give me your email address, and I will duke it out with you one-on-one, instead of piecemeal and as a sidelight to some other issue, and you can STOP interjecting it everywhere, OK?

It is puzzling that you decry the state of nature since you do employ it in two contexts, at least.
Their the two distinct "states of nature"--Lockean and Hobbesian. The Lockean "state of nature" usefully describes two situations

I will accept that a qualifier is needed, and while I won't get into particulars to lay out my position in detail or to defend it, I will clarify the point: I do not accept either the Hobbesian "state of nature" nor the Lockean notion.

For Hobbes, the "natural" condition is every man for himself, dog-eat-dog, and society is an overlay on that, an accident of circumstance and weakness. I reject this, I believe that man is social by nature and that his full good implies social relationships, that harmony in society is PART of his natural good. I am not debating this here, just pointing out a clarification of what I meant.

For Locke, his "social contract" implies that man is not intrinsically ordered to social relationships and thus to obedience to authority, but takes that condition on by an overlay, an act of the will which he is notionally free not to make. This too I reject. So, my comment above rejecting "state of nature" was intended to refer to these particular theories, not all possible senses and circumstances that could fall under the expression.

There are subtleties here.

Fair enough. This is valid.

Marriage is essentially a social reality, not a private contract or even covenant between two individuals that happen to make it in public.

I sort of agree and sort of don't. There are subtleties here. Adam and Eve were married before there was a larger human society. They had a true marriage because from the beginning God intended man and woman to form a social unity, the family. There is, thus, an ontological reality made real by the mutual consent of two, husband and wife, to become spouses to each other, that exists even aside from the larger social picture. (If two people went off to found a new colony on Mars, they would be married even without there being (yet) a society for them to express that marriage within.)

But it is true that marriage is a social reality, and when there is a society the ontological reality of a marital entity cannot be completely independent of the social fabric around the couple. There is a necessary (by nature) interconnection between the marriage unit and society, the two are bound by nature to recognize certain limits with respect to each other. Thus, the social forms of various different societies are, generally, different ways of carrying out the recognition of those limits, with (as usual with sinful and fallen men) a certain amount of failure to enact in the concrete the proper and due limits around the edges.

Tony,

Another side effect of the increase in fornication is that it is now difficult to prove (in a way that meets constitutional muster) that a true act of rape occurred because now it is purely a matter of the state of mind of the one claiming to be a victim of rape. The various barriers to fornication helped weed out the false claims from the true claims because the possibility of a woman being labeled a slut was intrinsically damaging and a possibility if she lost the dispute. It also made it easier for the police to ascertain whether or not a woman likely would hop into bed with a man. Prior to the sexual revolution, it was much rarer for an ordinary woman to ever consider a one night stand, among many things.

The obsession with degrees of consent is a natural outcome of this situation. This is how we arrive at ludicrous situations like a woman who has had a few drinks being called a rape victim when she sows her wild oats and claims the next day that it was the demon rum that made her act the way she did. What's more, we as a society in our moments of honesty know that we've all met plenty of people who use intoxication as a wink and nod way of going Dr. Jekyll and Mr. Hyde on these things. In fact, I've seen claims that as many as 6-10% of all women regularly use alcohol to get over their hangups including just to function in long term relationships.

I'd also add to your points about the marital debt that it can be instructive to see how people who profess to be conservatives react to it. Very often I see vehement opposition to the idea that a wife has a limited moral right to refuse her husband and that passive aggressive behavior like starfishing is an immoral way to treat her spouse. One of the Southern Baptists' leading theologians even argues that men must earn their right to the marital bed every day of their lives and if the wife doesn't want him, it's a reflection on him. The rejection of this concept is actually, sadly, very mainstream in "conservative" circles.

Compounding that issue is that most of the time, the people who reject the marital debt on the female side enthusiastically embrace it on the male side. Usually the approach is to downplay the importance of the sexual relationship to marriage and try to shame men into making it sound like they are using, as Zippy would say, their wife as a "sexual toilet." Heck Matt Walsh made a comment on his blog a few months ago that if you're a young couple that has sex once every few weeks you'll probably still be fine and he's one of the better ones. (Left unsaid on his blog except by a few stray comments is that a young couple that has such a frequency of sexual activity is probably headed more toward imminent divorce than long term marriage unless there are serious, external factors imposing on them)

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