The Obergefell decision has been understandably generating tremendous media coverage and analysis. Most of the commentary has discussed either the speed at which society has given approval to same-sex marriages or the potentially dramatic “legal overreach” by the judiciary. One very foundational point, however, has gone nearly without comment: the legal jurisdiction of the family. In the wake of last week’s Supreme Court ruling, marriage, and therefore the family, has undergone a shift from an objective and pre-political institution into a post-political association defined by the individual and managed by the state. Among the many harmful effects of this shift is that it sets America, along with most of the “First World,” in opposition to the majority of the world, including the legal reasoning of the United Nations itself. But this crisis also gives Christians an opportunity.
Douglas Farrow makes our first point in a cheekily-titled essay at First Things. He higlights the fact that marriage has now been legally disconnected from its grounding in nature and has actually been made a creature of the state. Dr. Farrow states:
Both the majority and the minority kept slipping back and forth, quite unconsciously, between “the right to marry” construed as an individual autonomy right and “the right to marry” construed as the right of a couple. Did this not warrant even a moment’s thought? By long-standing international precedent, the right to marry is the right of an individual, not of a couple. Licenses are issued to two people, both of whom have decided to marry and intend to marry each other in a lawful union, but “the right to marry and to found a family” is a right of “every one” (thus article 16 of the Universal Declaration), not of “any or every two.”
And this makes a difference to the whole argument. Even the Obergefell minority used the language of “extending marriage” by enabling same-sex marriage. But (as I argued in Divorcing Marriage) you can’t extend something that is already universal. You can only change it from one thing to another, or rather exchange one thing for another; in this case, marriage as the union of a man and a woman for marriage as the union of two persons. Or perhaps, as Chief Justice Roberts points out, more than two persons.
I do wish the dissenting minority had reckoned with this, for it would have strengthened their case considerably. When we make marriage a couple’s right rather than an individual right, while thinking of marriage as a CPR [“close personal relationship”] to which proles is strictly optional, the same-sex marriage problem immediately arises, and arises in a form to which the only just solution is indeed the Court’s solution. If, on the other hand, we maintain that marriage is an individual right, and acknowledge that it is already universal, then there can be no question of “extending” it, whether by same-sex marriage or by any other means.
We can unpack this a bit. If marriage is understood as something to which an individual has a right, then the logic of using “equal protection” to legalize same-sex marriage falls apart. This is because individuals of any sexual orientation already possessed an equal right to marriage before Obergefell. It was simply that they possessed an individual right to enter into a legal marriage, and the kind of marriage for which they were advocating was not a legal marriage. Indeed, a great many LGBT persons have married persons of the opposite sex for decades, and no one was suggesting that those marriages were invalid or somehow “not real marriages.” There was no prior legal barrier to enter into a legal marriage for any person, and thus individual rights were not being infringed upon. The real issue was whether or not a class of people (LGBT persons), signified by representative couples (“gay marriage”), had a certain right to self-expression which overrode the legal definition of marriage.
Indeed, Justice Kennedy’s “four principles and traditions” which supported the decision are said to apply, not to simply to individuals, but to couples: “Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” It is true that Justice Kennedy goes on to speak of “individual autonomy,” but then he moves back to “a two-person union.” When he speaks of marriage’s relationship to “social order,” he again speaks of “couples,” and when he moves on to the 14th Amendment, he is entirely concerned with couples.
But if equal-protection rights can apply to couples as couples, and if the couples’ legal identity is a subset of their volition, then marriage as its own institution loses all significance. Why shouldn’t an unmarried couple be granted the same privileges as spouses? They are a couple, after all. And, as an ever-growing number of commentators points out, what is the logical basis for a couple as opposed to some other plural grouping? This is a point that everyone understands and privately acknowledges. For all of its talk about “individual autonomy,” Obergefell achieves “marriage equality” by subordinating marriage to the political process, and in this case it was actually not a democratic process at all.
Once marriage is changed in this way, the family itself becomes a post-political creature. It too is the product of individual autonomy, and the individuals, in order to express this autonomy, which is ironically impossible to achieve individually, must make use of the coerceive power of the state. Their “freedom to” one kind of family must necessarily bring with it a “freedom from” another kind of family, namely the natural family. Though it was some time in the making now, Obergefell makes explicit the fact that family is now not considered to be the fundamental unit of American society.
One of the more confounding implications of the Obergefell decisions is that it now places “traditionalists” and “conservatives” in opposition to the American and “Western” social and legal norm but in agreement with the United Nations. Allan Carlson makes this point in the current issue of Touchstone, showing that 90% of the countries represented by the UN do with the new Western notion of the family and that their views are actually the 1948 Universal Declaration of Human Rights:
The stalwart 90 percent of the world can find full support for their position in that most remarkable of United Nations documents: the 1948 Universal Declaration of Human Rights (UDHR). While indeed expressing universal truths, this Declaration does have a significant Christian accent. It was an indirect product of Christian Democracy, a movement ironically brought to fruition by the European disasters of fascism and Nazism. With roots in the thought of Pope Leo XIII and the Dutch pastor/politician Abraham Kuyper, post-World War II Christian Democracy featured theorists such as Emmanuel Mournier, Etienne Gilson, Wilhelm Roepke, and Etienne Bourne.
Rejecting extreme individualism, these men argued that the good society was communal in important ways. They called for a defense of “natural institutions” that necessarily stood between the individual and the state. As Roepke explained, “the most indispensable, primary, and natural [of these] is the family.”
…Specifically, Article 16 of the UDHR declares that “men and women of full age . . . have the right to marry and found a family” and that “the family is the natural and fundamental group unit of society and entitled to protection by society and the state.”
There can be no ambiguity here about the definitions of “marriage” and “family.” During debate on the future Article 16, a delegate from Uruguay urged the deletion of the word “natural,” arguing that “the way in which the family was constituted was of secondary importance.” However, his amendment was soundly rejected; the words “natural” and “family” remained firmly bound together, a clear testimony to the triumph here of natural law.
Dr. Carlson does point out that the United States has pressured the UN to change this language, but so far it has failed to actually do so. The legal language of the UN’s declaration is clear, “the family is the natural and fundamental group unit of society and entitled to protection by society and the state.” This stands in contradiction to the argument of Obergefell and the wider thought of the leading Western nations.
Justin Raimondo, himself a gay man, has previously argued that gay marriage is a domesticating and heteronormatizing institution, something that restricts his notion of personal autonomy. Just recently he has written about how it will now become an instrument for increasing Western hegemony over the developing world. This all makes for an incredible reversal. Gay Marriage is now White! It is a trademark of late global capitalism, and those who oppose it, for any number of reasons, can be conveniently classified as human-rights violators. Will this change Christian assumptions about nationalism and foreign policy?
It’s worth pointing out that, in the West, traditional conservatives are now entering a true “minority” experience, perhaps on their way to becoming classified as outright radicals. The social-progressives are themselves the location of power, and yet the revolution has not actually happened, at least not in the way it had been advertised. The market has wholeheartedly embraced the new normal, which confirms what we’ve suspected about the Deep State, and the typical American way of life will continue largely untouched. If traditional religious persons wish to stand in meaningful opposition, they are going to have to resolve themselves to a very queer way of life. Their locations of solidarity will, again ironically, be in the Developing World. This becomes increasingly thick when once considers that this now presents a chance for traditional Christians to become anti-colonial voices.
While there is good reason to expect a future backlash in the American political climate, potentially giving the GOP new life, it would be naive to assume that reclaiming the conservativism of Ronald Reagan will be in any way a meaningful response. The fight for religious liberty and the protection of conscience is immediately practical and necessary, but it too is a only a stop-gap. The true response is to see that both “Left” and “Right” forms of American politics have themselves been species of the same overarching genus–The Politics of N.I.C.E. While Justice Scalia complained that Obergefell betrays democracy, other voices have rightly pointed out that it was perfectly faithful to larger trends and even the classical liberal political program. And so then our challenge really is to be radical, to get to the radix. What is the relationship between the family, the state, and the good, and is there a meaningful common good to be sought?
The dissenting justices in Obergefell made a fairly clear case that they believe the United States’ highest governing body has contradicted its constitutional principles and has given up credibility. Unsympathetic commentators actually used the word “treason” to describe this, and it will be interesting to see the legacy of interpretation on this point. Will conservative politicians call for impeachments, nullification, or even secession? It seems extremely unlikely now, but the political logic points in precisely that way.
What of Christians? This is not the place for a manifesto, but important questions must be asked. One even has to wonder whether Christians ought to enter into certain civic vocations at this time. The military seems an increasingly problematic place for Christians. There has been much talk about “exile” and the so-called Benedict Option, but these seem impractical and even impossible. Are there “active” options? If so, they will need to start with concepts like the natural family, and they would do will to seek alliances with truly non-privileged voices. “Third Ways” have to be found, and many of the basic assumptions of political theory need to be subjected to scrutiny and critique.
Most Christian “worldview” writing invariably falls into a sort of “We can do it!” rallying cry, assuming that since ideas have consequences, our (right) ideas will necessarily have (good) consequences and soon. But it seems most likely that we are not yet at any sort of new beginning. There will be immediate pressure to accommodate to the new way of life, and appropriate distinctiveness will become very costly. Christians need to commit themselves to doing foundation work, and this will mean time and money without any necessarily tangible products.
Perhaps most of all, Christians need to begin finding new identities, seeing that their interests and values are actually shared by people otherwise very different and remote from them. This will take a great deal of time, and will likely be met by severe opposition from within, but it will actually open the way for new options and strategies, and it can also avoid many of the classic pitfalls of “conservative” political perception. The tables can, indeed they must, be turned, and justice must be united with ius, “rights” must be grounded in right.