A series of setbacks in the culture wars may tempt conservatives to wish away any further conflicts about marriage and family life by “getting the state out of the marriage business.” Marriages would then be the concern only of the couples themselves and of the institutions of civil society that those in the marriage connect themselves with. In any event, conservatives might think, it is better to have no state recognition of marriage than an erroneous one.
This temptation to make marriage a private affair seems justified for several reasons. First, much of marital and familial life is private. There is little direct governmental input over whether to have sex, whether to have children, how to raise children, and so on. Second, our cultural circumstances have changed: much apparent privatizing has already occurred on issues related to marriage and family life. As a society, we have privatized access to contraception, loosened regulations on obscenity and pornography, allowed easy divorce, and now equated same-sex relationships with marriage. Marriage generally may have no choice but to follow suit.
As others have argued in this space, such a position adopts the central liberal illusion that the state can be neutral in moral controversies. My new essay “Can the State Be Neutral on Marriage?” combats this shibboleth. Why? Because the liberal approach to marriage cultivates an ethic of expressive individuality, compromises the tutoring of the passions, and tends to undermine parental rights as well.
There is No Neutral Ground
The temptation to privatize marriage is another application of the contemporary liberal and libertarian aspiration for state neutrality. Moral controversies, such as over the nature of marriage, are, in this view, “bracketed” or taken out of the realm of politics so that majorities can no longer weigh in on them. Liberals affect to believe that privatizing moral controversies will have no effect on practice.
In truth, however, there is no such thing as a neutral law. Laws make some thoughts more thinkable and some actions more doable. When the public treats all forms of adult relationships as equally valid (as privatizers must insist that it do), mores change as well, so all relationships are accorded what Ronald Dworkin calls “equal concern and respect.” This affects behavior and attitudes by detaching honor or shame from actions. The choice of whether to allow choice in marriage matters is itself a choice—a choice that is shaped by particular moral considerations and has inevitable long-term moral ramifications. To decide that the state ought to leave people free to choose on matters of marriage and sexuality is to decide either that this realm is truly private and hence unimportant—like the choice of hairstyle—or that one elevates individual choice over the common good—like the choice of how to define marriage.
Laws always reverberate throughout the culture. Withdrawing marriage from the protection of the laws teaches that the form or goal of marriage is a matter of indifference from the point of view of the public. It shapes morals and social conduct toward indifference for marriage and a looser conception of marriage. The results are everywhere around us. Even supposed privatizers, such as Lawrence Friedman, implicitly recognize that “‘the republic of choice’. . . a world in which the right ‘to be oneself,’ to choose oneself is placed in a special and privileged position; in which expression is favored over self-control.”
Morality and the Challenge of the Passions
A country always legislates morality. The only question is which morality. Will the laws promote an ethic of self-control or an ethic of self-expression? Will the laws embody the idea, anchored in expressive individualism, that marriage is a convention that individuals can mold to suit their desires? Or will they embody the idea that marriage is an institution with particular goals (procreation and education of children) that are best accomplished through monogamous unions between a man and woman? The halfway house of neutrality is a Trojan horse to advance a commitment to expressive individualism.
The existence of each political community depends on married adults having children and raising them to responsible adulthood. America depends on these future citizens possessing self-control, a healthy work ethic, high levels of trust, perseverance, an ability to execute long-term plans over experiencing short-term delights, taking responsibility for one’s actions, and civility.
Human passions complicate securing the type of character necessary to sustain a self-governing people. Children must be reared so that they can learn to control their urges and subordinate their passions to worthy goals. Adult erotic longings must also be channeled toward enduring relationships and responsible procreation. Men and women must rank their marriages and parenthood as important components of a good life amid the competing claims of careers and other claims on their time and energy.
How people meet these challenges depends largely on public morality—on prevailing ideas about the honorable and good in any political community. No institution better meets the challenge of the passions than enduring, monogamous, heterosexual marriage. The family arising from such marriage is centered in part on the individualized devotion to children, helps to place adult sexual passions in a proper subordinate place within a shared life, and attracts loyalty with the promise of lifelong companionship and mutual affection.
Laws still supporting a public morality of self-control have, as their primary justification, the goal of maintaining an environment where men and women can form enduring, monogamous bonds. For instance, prohibitions against prostitution, incest, polygamy, open displays of pornography, public nudity, and public fornication remain. Each of these remaining elements of a robust ethic promoting self-government deserves careful reflection.
Consider the bans on public nudity and fornication. Such acts take the mystery out of sex, emphasizing humans’ kinship to animals instead of our distinctive, personal relations with others; such prohibitions reflect a belief that there is something special about human sex rooted in our capacity for love and shame. Public display of such things would tend to liberate erotic passions even more from their moorings in enduring, loving relations and liberate eyes to wander even more. Our proscription against public nudity and fornication makes sense as an element promoting enduring, monogamous relations.
Chief Justice Warren Burger’s Paris Adult Theatre v. Slaton (1973) decision justifies limits on the public display of hard-core pornography:
The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.
Subsequent years confirm the Court’s contention. Looser sexual morality abetted by public consumption of pornography creates debased and distorted relations. It has depersonalized sex and changed standards for what constitutes shameful or modest appearance. This makes American culture less hospitable to enduring marriage, intimate monogamous relations, and responsible family life.
As a result of our embrace of expressive individualism, we have loosened the definition of obscenity, secured freedom to divorce, cultivated equal treatment for cohabitation and marriage, gained acceptance for same-sex couples, and overcome many other elements of the ethos favoring self-control and self-government. All of this has been done to promote particular ideas of human sexuality, childhood education, and marital dependence.
The laws loosening obscenity and hence de-regulating pornography, for instance, may implicitly hold that sexual desire is naturally good and unproblematic, so long as social taboos do not impose artificial constraints on it and as long as the parties consent. In this view, the liberation of sexual desire from traditional constraints, the end to public shaming and humiliation, erasing the idea that there are “right” and “wrong” sexual outlets, and even the end of shame as a private feeling are needed for a fuller flowering of happiness and virtue. Deregulating pornography promotes the “modernization” of sex.
Divorce laws, among other things, make mutual dependence within marriage more difficult to sustain. They require of a woman, especially, a more independent-minded approach to marriage. Marriage can no longer rank as high of a priority in her life, without her engaging risks. Regardless, “the kids will be fine,” as one book by a “thoroughly modern” author puts it—regardless of how much parents and especially mothers do.
“Privatizers” might suggest that those who desire a life of devoted monogamy and who are dedicated to raising children are still free to do so without the interference of the law and without cultural disapproval. There is some truth to this. Many people take their bearings from authorities outside the law and the prevailing public morality such as churches, tradition, or simple habit. These authorities, so long as they are tolerated, can lend some support to the ethic of self-control, self-sacrifice, and the governance of the passions.
Traditional family life is not so much outlawed as it is compromised and dishonored. People are social creatures. Thus, the predominant culture—which is shaped, in part, through laws—affects everyone. Acceptance of no-fault divorce, the wide consumption of pornography, and the acceptance of cohabitation as equal to marriage are abetted by the laws that promote an ethos of expressive individualism. As that culture depends on law, so does a culture emphasizing the cultivation of self-control and monogamous love. Elements of our laws still tend to assist in the promotion of self-control.
The New Parenthood
Getting the state out of the marriage business would mean re-establishing parental rights and authority through the creation of new, state-created units. Society requires someone to meet a child’s needs, choose a child’s school, and provide support and supervision for children in the home. To replace marriage, contemporary liberals would have the state create “Intimate Care-Giving Units” (ICGUs), to use Tamara Metz’s conception, to regulate and support relations between caregivers and dependents. ICGUs would identify caregivers and then support caregiving through public monies, regulation of the workplace to provide time off or space to provide care to assigned caregivers, and the dispensation of certain powers to make decisions on the dependent’s behalf.
Empirically, such state-created units have failed, on a massive scale, in America’s inner cities, among other places. But it is crucial to see why they are ineffective. ICGUs are built on the assumption that, for the caregiver, the dependence of infants and children is no different from the dependence of the aged or infirm. It abstracts from how the relation among caregivers (i.e., marriages) gives impetus to the caring for dependents (i.e., children). It assumes that care comes, as it were, out of nowhere, instead of being an expression of marital love or duty or devoted parental responsibility. The state would be forbidden to encourage stability or exclusivity between (or among) caregivers—and hence not promote stability, resource sharing, or mutual responsibility between (or among) “caregivers.” Such instability would make it even more difficult to identify parents and to supervise, discipline, inspire, and educate children.
Other practical problems arise, such as establishing paternity, dissolving parental rights, and defining the extent of intimacy and care necessary to become a unit for purposes of state sponsorship.
Given the predominance of those promoting expressive individualism, it is necessary for those who would defend the family to begin their efforts in their own families, in their churches and synagogues, and in civil society generally. This may begin to limit the ethos dedicated to individualism. Eventually, however, no genuinely healthy family culture can grow without support from the law. Conservatives today must testify to this fact, knowing that, for now, there may not be ears to hear.
Scott Yenor is Professor of Political Science at Boise State University and was 2015-2016 Visiting Fellow in American Political Thought in the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation. He is the author of Family Politics: The Idea of Marriage in Modern Political Thought (Baylor 2011) and Hume’s Humanity: The Philosophy of Common Life and Its Limits (Palgrave 2016).