This title — “The State’s Interest in Marriage Transcends Children because Marriage Does” — is known, in the trade, as Dan Kelly-bait.
Let me start by saying I agree with nearly everything Greg says in his post. Rebuilding marriage is a more extensive project than just rolling back some of the legal changes on which I have previously commented.
And I particularly agree with his observation that “the moral imperatives associated with reproduction alone are an insufficient basis for a sound shared morality of social ethics for sex . . . .” However, that does not necessarily mean the state (as opposed to, say, church or other cultural institutions) has something to say about the moral imperatives of sex beyond that of procreation. Each intrusion into the marriage relationship requires an independent justification. So let’s see what we have.
Government, as we all agree, is not synonymous with society. It is a cultural player, but its writ does not run to every aspect of society. So before we say the state’s interest in marriage transcends the third facet we have been discussing, we have to first determine whether this broader scope is susceptible to legitimate government action.
We base that determination on the nature and function of government. Government exists to protect rights, and it accomplishes that goal by exercising authority delegated to it by the people who together comprise society. Its tools are limited, and consist almost entirely of coercion – preventing people from doing what they wish and compelling them to do what they do not wish. Within proper parameters, this is extraordinarily valuable. Outside proper parameters, it is almost always destructive.
I identified the state’s interest in marriage as creating a stable framework within which the couple’s offspring will receive provision and protection (and I’m glad that means I’m running with the bigshot Christian intellectual pack!). Absent that stable framework, the children will become wards of the state and a burden on society, and the child will be deprived of his rightful claim on his parents for protection and provision. The state may legitimately act in these circumstances because in doing so it is protecting the rights of both the potentially abandoned children, and society’s right to not bear the burden of raising someone else’s child.
With that in mind, let’s look at the child-transcending part of marriage in which Greg says the state has an interest. He observes that sex always and everywhere creates a permanent metaphysical union. I happen to think that is true, although the fact that it is metaphysical makes it difficult to verify.
But let’s assume it’s so. Why does this suggest the state might have an interest in that metaphysical union? The metaphysical nature of sex comes into play with two of marriage’s three facets: The first (interpersonal relationships), and the second (the relationship of the union to God). But the very fact that these are metaphysical should suggest they must be free of the entirely physical reach of the law.
So why do we in society, through our representatives in government, have any standing to approach a couple and tell them that the metaphysical aspect of their sexual behavior is subject to our scrutiny and regulation? If they are doing nothing to injure someone’s rights, or putting us at risk of shouldering their responsibility should they produce a child, there is no basis for our coercive intervention.
The law properly reaches marriage’s third facet (cementing a union against the possibility of procreation) because the facet and the intervention both exist in the physical realm and deal with the protection of rights. So if the state’s interest in marriage transcends that facet, we need to know what it is about that transcending part that subjects it to the state’s coercive attention.
Back to you Greg.