It can often seem—among proponents and opponents of same-sex marriage alike—that the fight over marriage is a fight over sexual morality or visitation rights or tax preferences for partners. But these are all secondary issues, none of which accounts for the deep passion and commitment we see on both sides. As Edie Windsor herself said, “Marriage is this magic thing…”
She’s right, of course. With marriage, there’s something there that is much more than a piece of paper or a ring.
But, what makes marriage “magic” is precisely the part of it that’s beyond the power of law to refashion. What kind of “magic” is left in marriage when it is reduced to a mere legal convention and subject to redefinition at the whim of the state? Redefining marriage doesn’t lead to “marriage equality”; it just means de facto civil unions for all. And say what you want, if “marriage” is a pure-bred creature of the state, the “magic” is long gone. Or at least on its way out.
Either marriage is uniquely special or marriage can be radically redefined by the state. I’m not sure most supporters of same-sex marriage quite grasp this. I’m not sure most of the rest of us quite grasp it either, despite the widespread evidence that no fault divorce has had precisely this effect on marriage.
The magic of marriage aside, the fight over marriage is, more fundamentally, a dispute over the nature of society and the jurisdiction of the state; a dispute with enormous implications for civil society, religious liberty, and limited government itself.
Marriage is an institution that exists prior to the state. This doesn’t just mean that marriage existed before there was a United States of America, though that’s obviously true. It means that marriage is more fundamental to society than the state. The state did not create marriage, yet because marriage is so fundamental to the common good, the state is bound by justice to recognize marriage and, to some degree, to defend and protect it. (See my longer explanation of this, here.)
A state that fails to recognize marriage does an injustice, not only to the individual spouses, but to the marriage itself. A state that presumes to radically redefine marriage (in this instance, by explicitly denying marriage’s essential connection to childbearing, and thus, the necessity of sexual complementarity) is a state that has claimed for itself total and universal jurisdiction over public goods.
Put another way, a state that believes it has the right to redefine the fundamental social institutions it was created to defend is a state which has rejected an important premise of limited government.
If the state can legitimately redefine marriage—not just around the margins, but radically—then there is no place in society to which the authority of the state does not extend. In this view, the institutions of civil society—marriage, family, schools, charities, even houses of worship (to the extent they minister publicly)—have no rights or authority proper to themselves. They are functionaries of state power, glorified government subcontractors, exercising authority that has been given them by the state, and which can be removed by the state as utility or efficiency (or the whim of the majority) demands.
In such a view, society and all the institutions that comprise it are mere aggregations of individuals. This is a view of society in which the whole can never be more than the sum of its parts. Individual interest and the assertion of individual rights constitute the sum total of the political and social goods. It is little consolation to observe that the distortions we now see being codified by judges were long ago legislated, as it were, in the culture.
In this view, as Barney Frank has said, “Government is simply the name we give to the things we choose to do together.” Or, as the Democratic National Convention informed us in 2102, “Government is the one thing we all belong to.”
A government that ceases to acknowledge any social realities or goods beyond its jurisdiction—even natural human goods like marriage—ceases to be a means by which society seeks the good and makes itself ultimate judge of the good. Needless to say, this understanding of the state is utterly contrary to Catholic social teaching, since it denies any such thing as the common good, reduces solidarity to mere safety in numbers, views subsidiarity as little more than a principle of bureaucratic efficiency, and leaves the human person standing naked and exposed before the power of the state.
It’s also worth noting that this view of society—an aggregation of individuals bound together by the state and those institutions permitted by the state—is held by many on the Right as well as the Left. (In this sense, the push to redefine marriage has been a catalyst in this ongoing crisis, but it is hardly the fundamental cause.)
John Paul II warned of this totalitarian tendency (his word) in democratic governments in Centesimus Annus, back in 1991.
It must be observed in this regard that if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism.
If the state can deconstruct marriage, it can deconstruct other social entities and institutions as well. Like the Church, for example. That’s not to say the state can (or would) destroy the Church, but the state can deny the Church her rightful place in public life by placing onerous conditions on her participation in society.
When religious liberty becomes exclusively a matter of individual conscience, and not a right proper to institutions as well (as the Church insists and as American law has long held), then the Church is no longer free to practice publicly as she must. At least not when doing so would put her in conflict with a state that claims for itself the right to define and minister all public goods. Religious institutions must either conform to the state-approved means of public engagement or remain in private.
In this regard, as my colleague Yuval Levin pointed out recently, when the state which claims for itself jurisdiction over all public goods, foregoing only (certain) private goods, the result is a de facto state religion, what Levin refers to, in our case, as the “Church of the Left”:
This distinction between individual and institutional religious freedom has actually been at the core of a lot of the religious freedom battles we’ve had in the Obama years. It has been more prominent in the HHS-mandate debates, but it’s very much a part of this argument about whether a florist shop or a pizza parlor can be Christian. In a country with a non-Christian state religion that it takes seriously, the answer is basically no. The florist can be Christian as an individual, but his store can’t be, because institutions, unlike individuals, are creatures of the law and our law already has a religion: progressive liberalism.
We who are appalled by the perverse reaction to the Indiana law are not exactly defending the free exercise right; we are in a sense opposing a violation of the prohibition on religious establishment. The point is not that running a flower shop is a way of practicing one’s religion. The point is that, if reasonably possible, people should not be compelled as the price of entry to the public square to honor as true what their understanding of their religious obligations compels them to judge false.
What does all this have to do with yesterday’s oral arguments before the Supreme Court? Well, consider the following exchange between Justice Alito and The Obama Administration’s Solicitor General:
Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
General Verrilli: You know, I—I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.
Tax exemption does not a religion make, but the above should serve as a clear warning to anyone who cares about religious freedom or civil society—and serve as a stark reminder that the two stand or fall together. Dioceses, parishes, universities, schools, hospitals, charities, religious communities, and the like should seriously consider the fiscal and pastoral implications of full tax liability, which could become the price of fidelity. Such a turn of events is not inevitable, but it would be foolish to ignore the real and growing possibility that such changes could be coming soon. The Church, of course, will survive; the common good will suffer.
We’ve heard a lot from Pope Francis about a Church that is poor and for the poor. He reminds us often that the Church needs to be on the margins and go to the peripheries. Many have asked what it means for the Church to be poor. Many have asked what it means to be a Church on the margins.
We may all find out soon, and in ways unexpected. There’s more than one road to the margins.