On April 28, the Supreme Court heard oral arguments on whether same-sex “marriage” should be legal in every state. As articulated by Justice Kennedy, gay and lesbians have a powerful motivation for their claim, namely, human dignity: “Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can’t procreate but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”
Those with a high regard for marriage likely resonate with
an intuitive sense of its worth. But intuitions need unpacking if they are to
become the basis of law, particularly if undoing millennia of culture. Justice
Kennedy soberly acknowledges this, noting that the traditional “definition has
been with us for millennia. And it’s very difficult for the Court to say, oh
well, we know better.”
Given the seriousness of the question, a precise
understanding of what we are redefining seems warranted. What are these
specific attributes of marriage that render it noble and sacred, so much so
that dignity is fulfilled and conferred by entering into the married state?
What makes marriage valuable in such an exalted way?
The Court heard various claims drawn from the social
sciences about the well-being of children raised by same-sex parents and other
possible implications on the social fabric of society. About those, however,
Justice Kennedy expressed some skepticism, articulating that “we should not
consult at all the social science on this, because it’s too new,” and given the
fragility of our knowledge, “it’s only fair for us to say, well, we’re not
going to consult social science.”
Altering an institution rooted in many ages of human
experience while acknowledging our ignorance of the effects is a serious thing.
The change is so large, the risks so unknown, that the normal presumption
against instability would need to be overcome by a reason of grave weight and
clarity. Namely, that human dignity is fulfilled when persons have access to
the noble and sacred attributes of marriage.
Now, if marriage fulfills human dignity while possessing
nobility and sacredness, it makes sense that merely utilitarian calculations
about the consequences of gay marriage clearly fall in importance. Not
irrelevant, but not as vital as determining precisely those “other attributes,”
to use Justice Kennedy’s terms, which bestow dignity and nobility.
This seems to push us in the direction articulated by Sherif
Girgis, Ryan Anderson, and Robert George, namely, that one cannot make claims
about the nobility and sacredness of marriage until one has defined what
marriage is. How can we argue that marriage is noble until we know what
marriage is? Further, if examining the nature of marriage, it is quite fair to
ask whether there is a better definition available than the conjugal view—a
union of one man and one woman in a permanent and exclusive commitment
naturally fulfilled by bearing and rearing children. To put it starkly, the
various revisionist views postulating marriage as some sort of romantic
commitment enhanced by sexual intimacy not only fail to define marriage but
woefully fail to account for those mysterious “other attributes” by which to
defend nobility and sacredness.
Consider the argument offered to the Court by Donald
Verrilli, the Solicitor General of the United States. Marriage, he claims,
involves something more fundamental than tax benefits and hospital visitation,
for marriage is “an enduring bond between two people.”
Yes, marriage is an enduring bond, but not all enduring
bonds are marriages, nor are all enduring bonds fulfillments of human dignity
(consider a crime family). Are Tom and Sue, who’ve lived together for 20 years,
share finances, care for each other when ill, and love each other deeply
married? They share an enduring bond, even one shaping their lives, commitments,
and self-interpretation. But what if they are merely roommates, a brother and
sister, a mother and son? Further, why should such an enduring bond be limited,
as General Verrilli claims, to merely two people—why not three or four in an
enduring bond?
When asked that very question by Justice Alito, Mary
Bonauto, an attorney arguing in favor of same-sex marriage, responded, first,
that “multiple people joining into a relationship … is not the same thing we’ve
had in marriage, which is … the mutual support and consent of two people.” That
response is nonsense, of course, for not only does it avoid the question of why
there could not be a marriage of four, but it neglects to mention that what
“we’ve had in marriage” is not the mutual support and consent of two persons
but the mutual support and consent of two other sexed persons. If the
nature of the institution as it has been understood for millennia is a guiding
principle, then her claim self-refutes, but if the nature of the institution as
practiced from time immemorial is not a guiding or binding principle—which her
support of same-sex “marriage” quite obviously requires—then she’s provided no
reason against a marriage of four. But she can’t have it both ways, appealing
to the tradition to explain why only two while rejecting the tradition to
explain why it needn’t be two other sexed persons.
She follows that line of reasoning with worries about
“family disruption” and coercion. For instance, if there is a divorce, would
the “fourth wife” have “access to the child of the second wife?” It’s not clear
why this would differ from current custodial issues in the event of divorce or
adoption—does an adoptive father have access to the biological child of his
ex-wife? Why is this different in kind rather than degree? One cannot
explain this without reference to the nature of marriage, and note how quickly
Bonauto answers with reference to the bearing and rearing of children, which is
the natural fulfillment of a union of one man and one woman. That is,
her argument only makes sense because she implicitly privileges conjugal
marriage as articulated by Girgis, Anderson, and George. Again, she depends on
the very facts she is attempting to reverse, sawing the limb from under her.
(She also asks who would make decisions in times of medical emergency if there
was more than one spouse, but as this happens to be one of the arguments for
gay marriage it seems to favor rather than deny the medical decision rights of
throuples and quadrouples.)
These are very smart people, by the way. Well-educated,
accomplished, prestigious professionals selected to shape the meaning of
marriage in our society—still, their arguments are terrible. Not because
they aren’t intelligent or trained or prepared, but simply because their
starting point is an act of will, a fantasy. Marriage has a nature, it is a
normative reality, and marriage can withstand the enormous weight of fulfilling
human dignity because it really does have a structure and form supporting its
nobility and sacredness.
Such nature is not a matter of social convention, or choice,
or the “right side of history,” or human law, or the fruits of social science.
Marriage is the permanent and exclusive one flesh union of a man and
woman naturally fulfilled by the bearing and raising of children.
We can know this from nature and reason, although, to be
sure, it is not obvious to everyone. We know this also from revelation, and
Christians know that the nuptial mystery is a union and communion of difference
bearing analogical likeness to the union in difference of the Trinity. Marriage
is a welcoming and reception of difference, man of woman and woman of man,
which naturally has the creative capacity to issue forth in new life.
Receptivity, as Norris Clarke once explained, is basic and
“absolutely primary status of our being.” As “created beings” we first receive
our being from God, only then able to offer ourselves as gifts for others to
receive. Our cultural elites, though, revolt against this basic and primary
status. Their willy-nilly definition of marriage is based on nothing other than
bald assertion. But more than marriage is at stake: they reject the receptivity
of the man for the woman and woman for the man because they reject our
being as receptive. Rather than care for our being as a gift, they view it
merely as a raw given, a resource to do with as they wish. This is a revolt of
the will, and a repugnance and loathing of the being of humans.
As I’ve tried to unpack in Acedia and Its Discontents: Metaphysical Boredom in an Empire of Desire,
early monastics defined such repugnance as sloth (acedia), a hatred of
being. As one commentator explains:
Acedia … is a profound withdrawal into self. Action is no
longer perceived as a gift of oneself, as the response to a prior love that
calls us, enables our action, and makes it possible. It is seen instead as an
uninhibited seeking of personal satisfaction in the fear of “losing” something.
The desire to save one’s “freedom” at any price reveals, in reality, a deeper
enslavement to the “self.” There is no longer any room for an abandonment of
the self to the other or for the joy of gift; what remains is sadness or
bitterness within the one who distances himself from the community and who,
being separated from others, finds himself likewise separated from God.
We have to understand: arguments about same-sex “marriage”
are not just about sexual morality, social norms, estate taxes, religious
freedom, and the care of children (although all those factors are obviously
entangled in the debate). In the end, this is a fundamental struggle about
whether the human being exists in order to give/receive or to use/consume. We
are choosing whether to identify ourselves as created in the image of God or as
what Soren Kierkegaard termed “inclosing reserve,” a prisoner to oneself in an
endless self-regard avoiding any obligation to the demands of communion.
Receptivity, or the inclosing reserve of acedia—that is what we’re
arguing.
On April 28, 2015, in the venerable halls of our highest
court, sloth was arguing vigorously.
God Bless
Nathan
