November 1, 2012 | Commentary on Protecting the Institution of Marriage
Ever since the rise of the progressive movement, the American Left has championed political reforms to create direct democracy: ballot initiatives, popular referenda, direct election of senators, and recall initiatives. But now, apparently, there are exceptions. They favor direct democracy . . . except when they don’t like the result. Then they turn to rule by enlightened overseers.
There is no other way to explain the odd editorial in Tuesday’s New York Times, one week before citizens in Maryland, Minnesota, Washington, and Maine consider ballot questions on marriage. The Times argues, in part:
The freedom to marry is a fundamental right that should not have to be won or defended at the ballot box. In fact, ballot initiatives are a bad way to write or rewrite laws of any kind. . . . Thanks to court rulings and legislative victories, same-sex marriage is now legal in six states and the District of Columbia.
The editorial comes on the heels of Gallaudet University’s decision to place a senior administrator on leave for signing a petition to refer the marriage question to Maryland citizens.
When popular votes in 32 of 32 states go against you, you start taking a low view of democracy. Better to place your hopes with five of nine unelected justices of the Supreme Court.
A few more points. Next week’s votes on marriage are not about banning anything. Nothing will be made illegal as a result. In all 50 states, two men or two women can live together, have their religious community bless their union, and have their workplace offer them various joint benefits, if the religious communities and workplaces in question so desire. Many liberal houses of worship and progressive businesses voluntarily have decided to do so.
There’s nothing illegal about this; there’s no ban on it. What’s at issue is whether the government will recognize such unions as marriages — and then force every citizen and business to do so as well. This isn’t the legalization of something, but the coercion of others to affirm same-sex relationships as marriages.
None of us has a civil right to recognition of just any close bond. What we have a right to is legal recognition of true marriages. The question is not whether anyone should be barred from a civil institution, but whether same-sex relationships meet its proper criteria — whether they are true marriages. The question, in other words, is this: Does marriage — the human good in this debate so crucial to the public good — involve more than emotional union?
The answer to that question is nowhere in the Constitution, and judges need not enforce one. That is why “we the people” should decide it for ourselves. But as Dominique Ludvigson of the Heritage Foundation (where one of us works) has documented in a new paper titled “Circumventing Citizens on Marriage,” the people repeatedly have been thwarted in their efforts to do just that. Ludvigson draws the right conclusion: “Citizens in the voting booth — not activist courts or agenda-driven bureaucrats — should decide questions about the nature, civic purpose, and public interest in marriage.”
Citizens should seek to enshrine in law a sound conception of marriage, taking account of sexual embodiment and complementarity, the way sexual powers are ordered to procreation, and the ideal family structure for providing children with both mother and father.
As we argue with Robert P. George in our new book What Is Marriage?: Man and Woman: A Defense, marriage is a pre-political good springing from human nature itself. Prior to any governmental diktats, marriage is, of its essence, a comprehensive (mind-body) union of persons, ordered to the comprehensive sharing of family life. And only as a result of both these facts, it alone calls in a principled way for comprehensive commitment: permanent and exclusive. Marriage is, in short, a conjugal union. It makes a man and woman “one flesh” — in acts of conjugal love, and in the children that love brings forth — for the whole of life.
Because it uniquely fosters children’s development, a healthy marriage culture is in the state’s interest. But once the state gets involved, it must get marriage right — to make it easier, rather than harder, for people to live out the real thing. This includes the stabilizing norms that serve the public good, and that only the conjugal view can explain, or support in practice. Only by reflecting the truth about what marriage is as a human good can marriage law ever hope to serve the common good.
To recognize same-sex relationships as if they are marriages is to redefine marriage as simply an emotional union. But there is no reason that emotional union, any more than the emotions that set it apart, should be permanent. Or exclusive. Or limited to two. Or necessarily ordered to family life and hence shaped by its demands.
The more people came to internalize this new view of marriage as essentially an emotional union, the harder it would be for them to live out its norms, for their good and ours. By further undermining marital norms, redefinition would hurt children and spouses — especially the poorest — and force the state to expand to fill in for absentee fathers. By re-writing the parenting ideal, it would deny the importance of mothers and fathers.
By simply equating marriage with emotional union, and emotional union with marriage, redefinition would make deep friendship harder to find outside marriage, impoverishing our culture of friendship to the detriment of singles. By marking support for the conjugal view as bigotry, it would undermine moral and religious liberty. And it would do all these things in the name of a basic error about what marriage is.
— Ryan T. Anderson is the William E. Simon Fellow at The Heritage Foundation and Editor of Public Discourse. Sherif Girgis, a 2008 Rhodes Scholar, is a J.D. candidate at Yale Law School and a Ph.D. candidate in philosophy at Princeton. With Robert P. George, they are authors of the book What is Marriage?: Man and Woman: A Defense, to be released by Encounter Books later this month.
First appeared in National Review's "The Corner."