A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.



Stab back: cmnewman99-at-yahoo.com


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And I thought conservatives were supposed to favor freedom of contract.

Interesting piece by Frum on the WSJ opinion page the other day, taking up Sullivan's gauntlet to justify conservative opposition to same sex marriage. I believe the following accurately renders the logical structure of Frum's argument:

1) Our primary consideration in making laws governing marriage should be to make it more likely that children will be born into households stable enough to nurture them to adulthood.

2) The system most likely to attain this result is one in which the marriage state is a bright-line institution involving long-term commitment that you are either in, and therefore entitled to the benefits and protections thereof, or not in, and therefore not so entitled or protected. This way men and women know exactly where they stand, and women will not be misled into thinking they are in the kind of relationship that makes it safe for them to have children when they are not.

3) To the extent that society allows options deviating from this, such as civil partnership states entailing varying degrees of commitment, responsibility, and joint ownership, people who are not "the rich and the smart" will be confused and misled, and will be more likely to give birth to children in unstable relationships.

4) Many advocates of same sex marriage agree with all the above points, and therefore want a bright-line marriage institution with gay marriage included, rather than a proliferation of civil partnership institutions.

5) As a matter of political reality however, the policy described in 4) will never be enacted in any state where significant influence is exerted by religious organizations for whom the term "marriage" denotes a sacrament from which same sex couples are excluded.

6) Therefore, the drive to legally sanction same-sex marriage will necessarily lead to the proliferation described in 3).

7) Therefore, allowing same-sex marriage is undesirable.

Hmmmm.

A few observations.

The first thing that leaps out at me is Frum's effective concession that there's really no reason why it would be unworkable or pernicious to allow gay marriage on exactly the same bright-line terms as straight marriage. His argument hinges on the premise that religious people will never allow this—which is kind of like arguing against desegregation back in 1955 on the ground that southern white society would never allow it. The point has validity as a description of the political obstacles to implementation of the principle, but absolutely no relevance to the validity of the principle itself. He's not saying gay marriage is a bad idea, he's saying it's a good idea that will never be accepted whole, and whose partial implementation is worse than the status quo. At least, that's the way he's framed his argument.

Which implies that the real question here is why a religious objection to the contours of a civil institution should carry so much weight. I've never quite understood this. The sacrament of marriage from a religious standpoint and the civil institution of marriage from a legal standpoint are two different animals that serve different, though congruent, purposes. Civil marriage is a means of instituting certain arrangments of property rights and legal responsibilies that facilitate and protect the rearing of children. Religious marriage is an institution that tries to situate the spousal-parental relationship in a moral, social, and spiritual framework that will hopefully make it more resilient and fulfilling. To people who really believe in the latter institution, it forms the primary definition of their relationship, and whatever legal consequences also follow from it are ancillary, just as their belief that it's wrong to kill may also be reflected in, but does not depend on, laws against murder. So I simply don't understand how the Christian sacrament of marriage is threatened in any way by the civil institution of marriage being open to people who would not be eligible for that sacrament, any more than it is threatened by people of other faiths--or atheists--being allowed to participate. There is no full faith and credit clause between church and state.

So Frum's reasoning really leads to the conclusion that people like Sullivan need to keep hammering away at the intellectual and moral underpinnings of religious opposition to same-sex marriage. Because the main problem here is their unjustified—and apparently unjustifiable, if Frum's argument is all we have to go on—desire to exclude from a key institution people who believe in it as much as they do. In other words, point 7) is a non-sequitur, unless you assume the state of affairs described in point 5) to be immutable.

But my real argument with Frum goes way beyond that. It's about points 2) and 3). What we have here is a conservative arguing that when it comes to the most crucial transaction any of us will enter into, we need government to dictate the terms to us in a one-size-fits-all form contract that people must either take or leave. Because otherwise, you see, poor and dumb people will be misled. If that's true of marriage, why isn't it true of employment contracts, consumer loans, property sales, and any other transaction you can think of? I know; lots of people think it is. Funny though, I always thought "we must restrict choice to protect poor and dumb people from their poorness and dumbness" was the default lefty position. Go figure. Marriage already isn't a one-size-fits-all institution, because divorce, alimony, and child support laws differ from state to state, and you have no way to be sure ex ante which state's law will wind up governing yours. And the costs of making imprudent choices in this regard are already externalized to a large extent by the existence of welfare and child support laws. If you really wanted to make bright-line marriage serve the role Frum imagines, shouldn't you really go whole hog and make sure there is no welfare or child support for children born out of wedlock? While you're at it, shouldn't you also outlaw divorce?

Given that the bag is a distant memory in the mind of that cat, why not embrace freedom of contract and make it a vehicle for making people more conscious of the choices they're making? Why wouldn't it be salutary for couples contemplating one of these relationships to actually have to think about what sorts of legal obligations to each other they intend--or don't intend--for it to include? Forget prenups--I think it should be the norm that people draft their own nups. I know it seems terribly cold to think of getting married like negotiating a contract, but it is that whether we like it or not. Marriages break up and people come to resent each other often because they find out way down the line that they have different understandings as to what they thought their contribution was supposed to be and what they were supposed to be able to expect in return. Actually having to talk about these things and put them down in writing from the beginning might prevent some people from getting married who shouldn't, and it might also provide a basis for better communication down the road as people find their needs and expectations to be evolving. Would this deromanticize marriage? I don't see why. To a marriage of true minds, a meeting of the minds should be no impediment.

posted by CMN at 4:29 PM
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