Jason Kuznicki has responded to my reply to a post of his on marriage. Timothy Sandefur has noted that exchange, and it seems can’t have misunderstood or misconstrued what I’ve said any more than he did. I’ll start by remarking on Mr Sandefur’s disappointing remarks and then attempt to reply to Mr Kuznicki.

To recap, in Mr Kuznicki’s original piece, he had noted that the marriage, as a state recognized institution, is more about protecting the married couple against the state than the reverse. In my original piece I tried to establish that, while this is true that is compounded by the following difficulties:

  1. Marriage is an institution which has been almost universally regarded to have sacred elements. In a “separation” of church and state there are bound to be difficulties.
  2. The state has some reasons to need or defend marriage and that those reasons are not shared equally with same sex and traditional marriages.

Now, while I think the state has reasons to strengthen marriage and hold to any number of various laws regulating conduct, I don’t think the organ of government that does that should be the federal or state government. I think that our current state is in peril, in fact will not continue many more generations, because of the increased concentration of power at the highest (state and federal levels). At the very least this has enfeebled our own individual democratic “muscles”, or instincts and practices of a democratic nature are have been and are being replaced with notions which will in the near future (on a historical time-scale) destroy our polis. What is needed is both a strengthening of the state’s ability to regulate our society but that strengthening needs to be local. Decision that highly fractious and divisive which are today made and discussed at the federal level should be regulated instead at the local, village/precinct level. Each village, township, or precinct should be making for itself the decisions that vex us today, such as marriage, abortion, immigration, and so on.

My response and further thoughts on the two essays linked above can be found … below the fold.

Mr Sandefur begins by noting:

To begin with, it is not true that marriage has historically been regarded as a sacred matter. Marriage was not even a Christian sacrament for the first thousand years of Christian history. Before them, the ancient Greeks employed various religious ceremonies with regard to marriages (as they did with regard to everything else) but priests did not officiate, and divorce was legal and easy. And the less said about the Roman attitude toward marriage, the better. [emphasis mine]

However all this means is that Mr Sandefur saw the word “sacred” and didn’t read any further. However, to be more charitable, what I had said was:

Charles Taylor in A Secular Age begins by looking at the word “secular”. “Secular” comes from the Latin, saeculum, meaning a period of time. A liturgical rite, in a primal fashion, is a denial of time. It is meant to forge a connection with all the other rites that are the same. The Eucharist for example is a forging of a connection with the first Eucharist during that passover night almost 2000 years ago and every other Eucharist performed everywhere else since then. Marriage ceremonies are the same, a denial of time.

Sacred in the sense I was using was not a technical theological term like “sacrament”. The NFL Super bowl in this sense is sacred. It is a game connecting “outside” time, it has liturgical ritual elements, such as the coin toss. Those elements “connect” in the viewers and participants minds with the previous 40+ Super bowls of times past. The “sacred” ritual elements are an attempt to enlarge the significance of the event beyond their real mundane secular/time-bound nature. In this sense, marriage has been almost universally seen in this regard.

Mr Sandefur continues:

But even if it were true, it would be irrelevant, since at least the Anglo-American common law has always regarded marriage as a contract. […] In American law, where religion and the state are separated (not a common law principle) the alleged sacredness of marriage is even further removed from relevancy.

I’m not sure what relevance that has. I’ve never said otherwise. My point was that having separated state and the sacred, there will be some difficulty in cutting that knot because marriage is not “just a contract” for people. Saying it’s a simple matter to cut that divide is to ignore the fact that it not.

Mr Sandefur then looks at my second point above, concluding:

Olson, I think, reveals this major flaw in the conservative view when he says that “one of the problems for the gay couples in our community is that, while the individuals find some measure of protection in marriage, the state itself has much less to gain from protecting them.” But of course the state stands to gain that one thing which is the only gain any state has any right to expect: the gain of protecting the right of individuals to pursue happiness. It is where the state is conceived of as having a legitimate “interest”* in anything other than this that we run into problems.

Mr Sandefur falls here into “major flaw in the libertarian view” by thinking the only interest the state has is gaining more power, which is an “illegitimate end” and therefore must be opposed. A legitimate interest which all citizens (and therefore the state) share collectively is that their Nation/polis continue to exist. Without children being raised in families, being invested with the common beliefs and praxis of that particular state … it will “soon perish from this earth”, as it were.

Examine for a moment the modern trend to remove and set aside marriage. To “shack up” when convenient and then depart from each other’s company as the mood takes (or other distractions/partners) arise. This is distinctly “child-unfriendly” and from the states point of view, with an eye to continuing to exist as a nation with living people in it beyond the next generation, is a thing to be discouraged. Stable marriage is, from that point of view, distinctly a thing that needs “defense” against such trends in the state’s interest. Gay marriage, having no progeny, does not engender such need for defense.

Mr Kuznicki on the other hand, understood what I was getting at with the idea of the sacred, noting that he himself as an atheist still reached for the eternal in his marriage. However he offers:

It strikes me that none of this has anything to do with the state. It’s the most voluntary thing in the world, from the deepest and truest parts of ourselves. Compulsion has no footing here.

Note here the dichotomy between Mr Sandefur and Mr Kuznicki’s notions of the marriage and the state. For Mr Sandefur marriage is “just a contract”. For Mr Kuznicki, marriage is sacred and has nothing to do with the state. This is exactly the point I’m making. Marriage intrinsically mixes the sacred and the state, i.e., as arbiter of the contractual. Marriage is contract and is sacred. Having “separated church and state” or the sacred and secular and leaving only the secular to the state … there’s always bound to be problems when it comes to things at which the sacred and the secular are inextricably intertwined.

On the second point, Mr Kuznicki offers:

Now I actually agree that children have certain positive rights — that is, children do properly impose obligations on adults, not merely to let them alone, but to intervene actively. Libertarian theory simply doesn’t apply to four-year-olds.

But apart from the obvious (food, clothing, shelter), the exact nature of these obligations can be pretty hard to pin down. Yes, there must be an education, an upbringing — but there are as many variations on this as there are adults in the world. Catholic school? Montessori? Do you spank, or not? Cloth diapers or disposables? Somehow, the civilizing process must go on, and yet it can be very hard to tell exactly how to do it. For this reason there are substantial legal protections for many different kinds of families.

As I was noting, the regulation and “‘civilizing process” is one which has been an effort of some 500 years, Church, State, Colleges, Intellectuals, and our Leaders have all, to varying degrees, been “after us all” to civilize us. This effort has been remarkably successful. One of the major libertarian intellectual errors is to ignore how hard and how necessary and continual that effort is and must continue. A crucial linchpin in this effort is in passing down, by instruction within the family “how we should” behave.

Mr Kuznicki objects:

The political theorist in me wants to say that the state’s own interest is not necessarily on the side of civilizing man, or of bringing up virtuous young. The state’s interest, rightly considered, may be to do these things. But in practice, the state behaves as though its interest were always to grab more power.

The state’s interest in continuing is one that is rightly held by the state. There’s no way around that. The state must have that as an abiding interest or the idea of state has no meaning. America, the Ukraine, or France all have a rightful and abiding interest in there being an America, Ukraine, and France when the next generation and/or century rolls around. Without “civilizing man” and passing down common ideas and praxis and virtues … the state will not be there to greet the next generation.

He asks:

The agents of the state may just like it very well that gays can’t get married, because it means that they get more power over us than they do over straight couples. They may really enjoy the fact that they get their own neat little categories of people they are allowed to dominate — the unpopular, the weird, the difficult, the marginal. It’s certainly how state actors have behaved more often than not.

Now, I actually haven’t said they shouldn’t get married. What I have said is that the state has less reason to protect their marriages, because they’re not raising gaggles of kids. Just less reason to protect and preserve their relationship. Next in a short narrative he notes that lesbian couples can and do (often?) have and raise children, which may lead to the notion that there might be a sex related difference in how the state’s interests aligns with same sex marriage. But that’s parsing matters too finely for this discussion. Now, in general, I find the introduction of “narrative” into a more theoretical debate because it tends to muddy the waters. So, for myself, instead of trotting out example after example in narratives of mine own of how the youth of today are not getting the correction they need from the state or their parents it is perhaps better to note that the numbers backing his narrative are at best in the thousands, while the numbers of heterosexual marriages in which the state has interest (those kids) is in the millions. “Fixing” the relation of the state to same sex marriages seems something akin to being concerned about blisters in the paint on the poop deck whilst the engine room fire is nearing the magazine. Yes the paint needs work, but that isn’t a discussion you want to have at the sea floor.

Our state is failing to transmit mores and standards to the next generation. Our leaders insist on removing law after law governing conduct because those “blue laws” are antiquated and irrelevant. They aren’t irrelevant, however badly they might need updating. Those laws are the remnant of the previous generations attempts to help civilize us. Families and the state are required to cooperate on that matter if the state is to continue. Blue laws in general are not bad. They just need to be relevant. The best way to do both is to put the regulation local, so you don’t have to get rid of all the rules just because the same conduct in Times Square isn’t applicable in Appalachia. Let each do what make sense for the people living in each community and at the same time pound in the notion that people need guidelines and regulation or … we’ll be right back to the bad old days soon enough.

Filed under: CultureGovernmentHomosexualityMark O.
