I feel like a Hammacher-Schlemmer catalog: “The Best Argument for SSM!” It’s from John Zmirak, author most recently of The Bad Catholic’s Guide to the Catechism.
Actually, it’s not an argument for same-sex marriage. It is an argument for “marriage multiplicity,” and it’s “the best” because it starts with the distasteful-but-true premise that we’ve lost, the corollary that what we need now is a rearguard strategy, and the suggestion that America’s libertarian impulse can be a powerful ally as we seek to protect freedom of religion (which is truly threatened, and if you don’t know that, you’re an idiot). It’s “the best” because it allows us to endorse the right to be wrong, not the SSM concept per se.
My first reaction to the Supreme Court decision overturning the Defense of Marriage Act and leaving California’s Proposition 8 overturned was to think: “Note to future historians: we just revoked the Edict of Milan” …
The rise of same-sex marriage marks the end of the long, slow fight the Christian church has waged to keep legal marriage analogous to a sacramental covenant. But these Supreme Court decisions and all their consequences arguably became inevitable some 200 years ago, when the French revolutionaries created “civil marriage,” removing the church’s legal jurisdiction over this contract. At that moment, the meaning of marriage lost its anchor in an authoritative reading of man’s nature and flew off like a kite into the winds of human passions and opinion …
Thanks to no-fault divorce, [marriage] was already the least enforceable legal contract on earth — more fragile by far than credit-card debt, not to mention back taxes and student loans. It was, in essence, a weak legal partnership and a temporary sex pact that for some reason excluded homosexuals. Is this a hill worth dying on? …
Obviously, we have to fight. The issue is over what ground and with what weapons.
The ghost of civil marriage does not deserve our loyalty. In fighting for it, we are going against the grain of American individualism and goading libertarians to join our enemies — who will, as always, use them then toss them aside. Instead, we can make common cause with libertarians and invoke for our self-defense some cherished American principles, such as freedom of association, contract, and even religion.
And here is how: instead of demanding that the state enforce a single model of marriage contract — one that is already hopelessly compromised — we embrace freedom of contract and insist on it for ourselves. Why is it, we should ask, that Christians cannot draw up a legal contract that binds them as their sacrament says it does: for life? Why can’t we embrace that difficult promise and freely agree to have the state enforce it? Last time I was on a casino boat in Baton Rouge, you could mortgage your house on an ATM—and the state would enforce it. Why is it that Christian marriage remains an unenforceable, meaningless contract? As things stand now, in many states gay marriage is legal while Christian marriage is not.
Let’s abandon the notion of a single, normative marriage contract which is all that the state will enforce. Let private individuals (or their churches) produce contracts that lawyers can vet, which once signed will be enforced by the state. These contracts can be polygamous, homosexual, or celibate for all I care. Christian marriage can be one of those contracts. Churches that are serious about marriage can make signing a really solid (“covenant”) contract a condition of marrying in their place of worship. Every parish can have the boilerplate on its website: sign here or go find another Gothic building for your ceremony …
An arrangement like this should entirely satisfy the libertarian demand for freedom of association and contract — and claim it also for Christians. Christians should be satisfied that our model will prevail without the assistance and entanglement of the state. Of course, the Rousseauian left will not be satisfied: they will settle for nothing less than state-enforced “virtue” and mandatory “freedom.” But with this strategic retreat to more defensible ground, Christians and other social traditionalists will gain breathing room. We don’t need a Theodosius, but without a Constantine we may well find ourselves in the catacombs once again.
I’m not yet “all in” for this project, and I have some quibbles with Zmirak, e.g.,:
- “[T]hese Supreme Court decisions and all their consequences arguably became inevitable some
200500 years ago.” As Brad Gregory argues in The Unintended Reformation: How a Religious Revolution Secularized Society, “the Reformation’s influence on the eventual secularization of society was complex, largely indirect, far from immediate, and profoundly unintended.” But maybe Zmirak hesitates to say something so triumphalist under The American Conservative’s banner. (Even Gregory denies that the outcome was inevitable. He’s tracing a genealogy, not inferring a teleology.) - “How far are we, really, from a court ordering the Catholic churches of California to perform homosexual unions — and when the bishops refuse, fining the church into bankruptcy?” With a pretty high degree of confidence that I’m not missing anything, the answer is “very, very far.”
We’re not a Christian nation and never have been, but we are a Protestant nation in ways that transcend explicit religious commitments. And with that deeply Protestant character comes a readiness to find some way to paper over deep disagreements – disagreements like those that arose over the meaning of scripture before the magisterial Reformers had a chance to shove the evils back into Pandora’s box. A Protestant/Libertarian freedom of contract approach to marriage just might fly.
At the same time, the institutional framework of liberal states today depends on toleration if they are to avoid becoming more oppressive. The increasing hostility and incivility that characterizes moral disagreements in the early twenty-first century, such as in the American feud over same-sex marriage, in part reflects the extent to which proposed innovations depart from and offend others’ countervailing conceptions of the good. It would seem that there can be no rational resolutions to any such disagreements within the institutions and assumptions that govern Western societies today.
(Brad Gregory)
What could go wrong? A “gay veto” for one thing, as Zmirak hints. While Andrew Sullivan and Jonathan Rausch may be like the French Revolution’s Danton, there’s more than enough Robespierres who might veto what I omitted from Zmirak’s piece at the last ellipsis of the block quote:
To protect the liberties of everyone involved in this newly pluralist society, certain anti-discrimination laws also must be changed. If a gay employer doesn’t wish to hire Catholics, he should have that right—and the same for the goose as the gander.
(Emphasis added)
And I’ll say a bit more: in a regime of marriage pluralism, I suspect that a lot of the 1001 magical marriage benefits in federal law will be repealed, because it will become apparent that, while the marriage contracts may be enforceable, many “marriages” will be solely for private benefit with no public benefit to warrant tax breaks and such.
Will the ascendant gay rights opinion leaders tolerate a tolerance that means “discrimination” (by those oddballs who value “principle” more than greenbacks) could be among the things tolerated, and if the much-touted benefits of the name “marriage” (as opposed to “civil unions”) are going to dwindle?
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)
Tipsy Teetotaler ن 