Improving on the Conservative Argument in Defense of Marriage, Part 1

In his book, Truth Overruled: The Future of Marriage and Religious Freedom, Ryan T. Anderson argues that, for the concept of ‘marriage’ properly understood, sex matters. That is, Anderson argues that marriage can be only between one man and one woman. In praising this book on its back cover, Princeton’s Robert P. George calls Anderson “our nation’s most compelling and courageous defender of marriage as the union of husband and wife.”

Underlying all of Anderson’s arguments in the book is the argument that marriage is a “comprehensive union” that is “inherently ordered” toward procreation. Anderson argues further that the primary role of government in marriage is to “encourage” and “teach” the husband and wife to remain together, permanently and exclusively, thereby encouraging them to remain committed to raising their children. Anderson argues that permanence and exclusivity would not be required if marriage were based solely on a romantic bond—a bond, according to Anderson, that is based on changeable emotion—but are required only by the need to raise children well. Anderson calls marriage “our civilization’s primordial institution” (p. 1), and writes also (p. 141) that

maleness and femaleness are not arbitrary constructs but objective ways of being human. … Our sexual embodiment as male and female goes to the heart of what marriage is: a union of sexually complementary spouses.

Anderson further argues that forcing individuals to sanction same-sex marriages in matters of trade is an attack on religious freedom. Finally, Anderson argues that the most unfortunate victims of same-sex marriage are the children of same-sex couples, because these children deserve to be raised by both mother and father.

Anderson is to be commended for seeking to establish an objective basis for marriage, grounded in the nature of man and woman. In contrast, advocates for same-sex marriage and homosexual romance rarely if every present an argument for a distinctive objective value of, or even an objective basis for, non-heterosexual unions and orientations.

But articulating an explicit objective argument for a basic concept that has heretofore largely been taken for granted is difficult. In the present essay, I recommend five ideas by which Anderson—along with all conservatives—might improve his argument:

1. The proper purpose of law is to protect rights, not to encourage or discourage behavior.

2. The proper tradition to uphold is not the spotty tradition of all of human history, but rather the Enlightenment tradition of respect for man’s nature and individual rights.

3. The emotions of romantic love can and should be in harmony with reason. Therefore, marriage can and should be an expression of romantic love, not a counterbalance to fickle emotions. However, marriage is a romantic concept that is sex-specific.

4. Liberty must not be sacrificed for the sake of a defense of the narrower notion of religious liberty.

5. For a child, much worse than not having both a mother and father is having two mothers or two fathers.

The Purpose of Government is to Protect Rights

Anderson writes (pp. 24–25),

Marriage is society’s least restrictive means of ensuring the well-being of children. Government recognition of marriage protects children by encouraging men and women to commit themselves to each other and to take responsibility for their children.

What is the meaning of the word “encouraging” in the above passage? Would we say that the purpose of a law against theft is to encourage people not to be thieves? No, we would say—with John Locke—that the purpose of such a law is to protect the right to property.

Anderson writes repeatedly that “law teaches.” “The law shapes our culture, which shapes our beliefs, which shape our actions,” writes Anderson (p. 40). “The law is a teacher.” Again, would we say that the purpose of a law against theft is to teach people not to be thieves, or rather to protect individuals from thievery? What if some people never learn that thievery is wrong? Is the law then futile in regard to those people?

Anderson writes favorably (p. 25),

As the late sociologist James Q. Wilson put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.” [James Q. Wilson, The Marriage Problem (New York: HarperCollins Publishers, 2002), 41.]

Anderson also favorably quotes Maggie Gallagher as follows (p.25):

The critical public or “civil” task of marriage is to regulate sexual relationships between men and women in order to reduce the likelihood that children (and their mothers, and society) will face the burdens of fatherlessness, and increase the likelihood that there will be a next generation that will be raised by their mothers and fathers in one family, where both parents are committed to each other and to their children. [John Corvino and Maggie Gallagher, Debating Same-Sex Marriage (New York: Oxford University Press), 96.]

Thus Anderson implies that the purpose of law is “getting people” to act in a certain way, though he does not explain how acting in contrary ways would violate rights. And he advocates that government “regulate sexual relationships” in order to reduce likelihoods of certain outcomes—without explaining how these outcomes, though perhaps undesirable by many, would be a violation of rights.

If government’s purpose in sanctioning marriage is to encourage, teach, regulate, and get people to act in a certain way, then there is a simple way for people who do not want to be encouraged, taught, or regulated to avoid these actions by government. Such people simply could decline to get married. Then they could have the sexual relationship they want, have children, and then separate—all legally. The purposes of government that Anderson champions can be fulfilled only if marriage becomes required of all people who have coitus, or required of all people who have children. Is that what Anderson advocates?

There undoubtedly were times when marriage fulfilled the very purposes that Anderson names. Those were times of shotgun marriages, or times when societies required marriage before a couple could engage in sexual activity. Those were times when government was construed as parent to exercise authority over the ignorant and the unreasonable, rather than as defender of the rights of all individuals, as all individuals possess the faculty of reason.

Although advocated by Aristotle (Nicomachean Ethics 1130b25–27), to construe government as teacher is to accept the most extreme form of paternalism as political philosophy. If government must be teacher, then government must control education; and government must be paternal in all respects, providing citizens with food, shelter, healthcare, and spending allowance, and approving or disapproving private associations, that is, approving or disapproving trade. Government as teacher is government as parent. By his argument, Anderson is surrendering the sanctity of the family and the individual, the very sanctity he wants to defend.

Teaching might be a nice by-product of a law, but teaching is not the primary purpose of law unless we accept the paternalistic premise of the political Left. Nor should we make laws in order to encourage or discourage behavior, or to Nudge—as proposed in a book, with that one-word title, co-authored by former President Obama’s former regulatory Czar, Cass Sunstein.

Law is force. Teaching and force are incompatible. That is why ‘public education’ is so evil. Good law—that is, law that protects individual rights—leaves people free to set good examples and to teach one another. Good law also leaves people free to set bad examples, so long as those bad examples do not violate rights. All of us can learn from bad examples too.

As for Anderson’s terms “encourage,” “regulate,” “getting people to stay together,” as well as “teach,” these are euphemisms for social engineering.

The question should not be what the law should teach or engineer, but rather what the law should state in order to protect individual rights. If Anderson thinks that a child’s parents are violating the rights of the child prima facie by not being and staying married, then that is an argument he needs to make. I do not think that such an argument can be made successfully.

Existing marriage law, properly understood, does indeed protect individual rights, as exemplified by this passage from an Ohio statute:

A) A man is presumed to be the natural father of a child under any of the following circumstances:

(1) The man and the child’s mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated … or after the man and the child’s mother separate pursuant to a separation agreement. …

As I have written elsewhere,

A government-witnessed marriage ceremony provides the legal presumption that the husband is the natural father of any child subsequently born to the wife. This presumption protects the husband, the wife, and the child from paternity challenges by other men. Moreover, this presumption protects the mother and child from abandonment or denial of paternity by the father; stated more positively, the wedding ceremony affords the husband the opportunity to make a legally witnessed public pledge that he will be the man responsible for the care of the children born to his wife.

This presumption of paternity of course does not apply to same-sex couples, and so there can be no equal protection regarding this legal presumption, the legal presumption most distinctive to marriage.

That in a nutshell is the reason why marriage as a legal concept applies only to the union of a man and a woman. Marriage law, justly conceived, does not exist to encourage people to be good parents; it exists to enable individuals to secure their rights as parents, thereby also securing the rights of their children.

This pledge by the husband and wife regarding children is to each other and to their future children, not to government or society. Government does record and enforce this pledge, but government has no standing to insist upon such a pledge as a condition for engaging in coitus.

This understanding of marriage law, as protector of rights, was alluded to in What is Marriage?: Man and Woman: A Defense, by Sherif Girgis, Anderson, and George, in the following passage (p. 41):

A major function of marriage law is … presumptively to treat a man as father of his wife’s children.

Unfortunately, this argument by Girgis et al. has been subordinated in Anderson’s book to the argument for marriage as social engineering.

The Proper Tradition to Uphold is the Enlightenment Tradition

The development of the concept of individual rights in Western civilization was transformative; all traditional legal concepts have been transformed according to an understanding of the concept of rights. The legal tradition to uphold is not the pre-Enlightenment tradition of government as teacher and social engineer, but rather the Enlightenment tradition of individual rights. We should uphold this tradition not because it is tradition, but because it is right.

The Enlightenment tradition gave us more than individual rights. Important Enlightenment thinkers embraced the Aristotelian idea that entities act in accordance with their nature; these thinkers embraced Bacon’s aphorism that “Nature to be commanded must be obeyed.” These thinkers recognized that man, too, has a nature that must be adhered to for successful living. The idea of individual rights is but one of the ideas grounded in an understanding of man’s nature.

Anderson does invoke the idea of man’s nature—in particular, the complementary nature of man and woman—as an objective basis for marriage. But he does so in connection with procreation, not romance per se.

Anderson names what he considers the only two possible views of the concept of marriage: the “consent-based view”, which he opposes, and the “comprehensive view,” which he advocates. “The consent-based view of marriage,” writes Anderson (p. 15),

is primarily about an intense emotional union—a romantic, caregiving union of consenting adults.

Anderson writes further (p. 15) that this “consent-based view”

cannot explain or justify any of the distinctive commitments that marriage requires—monogamy, exclusivity, and permanence … .

That is, Anderson holds that romance does not entail monogamy, exclusivity, or permanence—that only the need to raise children entails these characteristics, which are characteristics distinctive to marriage.

In the second part of the present essay, I will argue that romantic love does indeed entail monogamy, exclusivity, and—when the romantic relationship is deep enough—permanence. Here is an overview from the perspective of recognizing the nature of man.

As the principle of individual rights has been transformative for government, so the idea of romantic love has been transformative for sexuality. Consent—as in the consent of the governed and as in the mutual consent of partners in trade—is an expression of liberty; therefore, consent is indeed an integral aspect of romantic love properly understood. We no longer tolerate arranged marriages or marriages chosen by the man only. But liberty alone, though required for the pursuit of happiness, is not a complete formula for the achievement of happiness. Underlying liberty in both politics and romantic love is the nature of man as a rational being. Romantic love is not a shallow, inexplicable sexual desire as seen in animals and in primitive (or postmodern) human beings, but is rather a response to deep and enduring values; it is an integration of mind and body, of reason and emotion.

Therefore, I will argue that same-sex couples, though unable to procreate, can indeed have loving relationships that entail—indeed, demand—monogamy, exclusivity, and permanence.

But in rejecting Anderson’s argument attempting to distinguish marriage from same-sex relationships, I will offer a different such argument. Government does not own the concept of marriage, because marriage—at least since the Enlightenment—is at least as much a romantic concept as a legal concept; just look at the traditional marriage vows, which are in the language of love, not dry legalese. Therefore, there is one more crucial aspect of human nature that bears on the nature of marriage: the complementarity of man and woman, not merely in regard to procreation, but also in regard to romantic love. This complementarity, which I will address in the next part of this essay, is identified by the well-known concepts of masculinity and femininity.

See Part 2 of this essay.