Tuesday, May 12, 2009

Abp Burke and Marriage - a brief

I am up to my neck in it right now, so these remarks have to be sintetici:

One of the subtexts to the Abp. Burke's observations regarding marriage, the family, civil society and the state, is not only worthy of mention, but indeed central to our understanding and address of the issue. Those who would use state power to change the basic structure of marriage, usually couch their case in terms of civil rights.

Civil rights are created by the state and are expressions of, or determinations in accordance with the fundamental rights of man. Marriage, however, and the natural society called the family, which is founded on it, is an instituion that is prior to the State.

The institution of marriage does not simply pre-exist the State: it is a natural social institution that survives even when the State disintegrates.

This means that the state is not competent to alter the fundamental structure of marriage.

N.B. This does not mean that a state may not, or ought not, or even must not alter the fundamental structure of marriage. It means that the State, as such, has no power to alter the fundamental structure of marriage. The State does not, as Chief Justice Catherine J. Marshall argued in Goodridge, "create civil marriage." Such a claim is not only based on faulty ontology; it is anti-historical and illogical. Marriage existed before the states did, and it continued to exist even when colonial governments were annihilated and before new ones were erected to replace them; the history of marriage in America belies the claim. Native Americans took wives and had families even when they were not subject to the authority of any state or federal power, while the validity of Indian marriages was never made to depend on the issuance of retroactive marriage licences or certificates after such time as a formerly sovereign nation came under the jusrisdiction of a state, or of the United States; the ontological priority of the institution with respect to the State is something that has never, on principle, been disputed in the history of our nation. If the state creates civil marriage, then the state may destroy civil marriage - without so much as a "by your leave" to those, who have entered into the union; this is absurd.

Nevertheless, it may be that everyone in every generation prior to 1988 has been dreadfully wrong about the right order of marriage's relationship to the State. The gravity of the interests at stake in the question calls for exploration of the possibility.

The right to marry the person of one's choice, without respect to the sex of the persons who would enter into marital union together, can only be a civil right if the state does, in fact create civil marriage. If the state does create civil marriage, then the state has power over nature. If the state has power over nature, then the state is not naturally limited in the scope of its power. If the state, however constituted, is unlimited in the scope of its power, then it is total.

So, the claim according to which the state ought to grant "marriage" as a matter of "civil rights" is actually based on a surreptitious presupposition, i.e. that the state is not naturally limited in the scope of its power, or, more bluntly, that the state is total.

The "gay marriage" claim may therefore be made to hold only within a totalitarian understanding of the state.

Now, I do not think the advocates of "gay marriage" are crypto-totalitarians. I do think they are gravely mistaken about the American understanding of the nature and purpose of government.

The difficulty of the matter is that gay marriage proponents have appropriated the vocabulary of a psychically and politically healthy citizenry, while Catholics and others of good will who oppose "gay marriage" often do so on the basis of spurious claims, e.g. that legislators have a "duty" to represent "the values" of their constituents; or that the "gay lobby" is out to "destroy the family". This sounds more like the ranting of a "second shooter on the grassy knoll" conspiracy junkie than a seriously engaged citizen ready to offer frank opinions and presume the good will of his fellows.

The short of it is that people on the right side of an issue are not guaranteed - and indeed often do not employ - better arguments than their interlocutors on the other side of the issue. Very often, all too often, indeed, the people on the right side of an issue are the wrong sort of people - the sort of people who frown at hot fudge sundaes and gripe about the noise the neighbors' children make while playing in the yard on Saturday afternoon. Too often people think that being right gives them a right to be nasty, or a claim to moral superiority.

In any case, the duty of legislators is to represent the interests of their constituents, and often it is precisely the conscientious execution of this duty that leads a legislator to lose his next bid for re-election. Ours is not a perfect system. It does happen to be better than all the others.

If Catholics are going to help society, then we must rediscover the forms and modes and orders of argument in our political system, and re-engage on the ground that shall then be available to us.



Matthew Warner said...

This is brilliant! Thank you so much for sharing. Gave me lots to think about.

Lazy Disciple said...

Thanks, Matthew. Hope to see you back soon!


Clayton said...

Ah, Brave New State, that creates such families in't.