In the March edition of First Things, the Back Page contributor, David Bentley Hart, penned a provocative, albeit erudite, reflection on a 'subtle tradition of natural law theory' that 'certain self-described Thomists, particularly in America, to import this tradition into public policy debates'. The article generated a wide range of responses, some appreciative, some agreeing, and some disagreeing, vehemently. I suspect most of the participants in the conversation knew they were talking about the question of gay marriage. Though Hart's erudition--the article was titled 'Is, Ought, and Nature's Laws', recalling such philosophical luminaries as Aristotle, Aquinas, Hume, and Kant in a single phrase--raised the debate out of the muck and mire and a hackneyed partisan slur-fest.
Let's repeat this a second time for rhetorical effect. Hart's article was about gay marriage--and I say this whether Hart intended it to be so or not.
The one place natural law theory keeps on creeping back into the public
discourse is precisely over questions about the nature of marriage. Tired out arguments about the institution of marriage preceding the foundation of the state or appeals to the supped antiquity of marriage are trotted out again and again by political pundits. Even the US Supreme Count Justice Samuel Alito, in a recording of proceedings from the court aired on CNN this morning, appealed to these old platitudes.
I take Hart's attempt to raise the discussion above its usual expression in partisan political witch-hunting as a hopeful sign for the future. So-called social conservatives can take it as an oppourtunity for introspection and get beyond the zero-sum calculus of deciding whether a person 'belongs' or is 'one of us' if they agree with 'us' on issue X. A good number of self-appointed Evangelical leaders to whose Twitter feeds I subscribe are unduly burdened by the thought that they have been appointed gate-keepers to Evangelical identity. They need to be unburdened of the thought that the Kingdom of God stands and falls on whether the definition of marriage extends to civil unions between homosexual partners in the 21st century United States. It's embarrassing for the rest of us to see the whole of human history reduced to such a bare and unimpressive nub.
Being Canadian, I speak to a North American situation, rather than simply an American situation. Speaking to that broader situation, I see so-called social conservatives investing an incredible amount of confidence in the idea that history is on their side. They are partially right; though the absoluteness of their claim leaves them in the position of being absolutely wrong.
It is true that definitions of marriage, or more generally the household, tends to be begin with the union of male and female. The first chapter of Genesis and Aristotle's Politics are in lockstep on this point. When later thinkers reflect on the foundation of the polity--and by later, I mean thinkers from the 3rd and 4th century B.C.E right down to Karl Marx in the 19th century--they talk about its foundation in the union of man and woman. That's more than 2000 years of people talking over and over about the same thing.
But it's not true that the relationship between the family and the state, or between families (pl.) and the legislating authority of the state (s.), has remained the same. The so-called social conservative movement, in fact, has been very selective in its reading of the intellectual tradition. The contemporary nuclear family is not the same as Aristotle's household, nor the 'being united to his wife' from Genesis. Most obviously, the household of antiquity served many more economic and political functions than the nuclear family presently does.
The relationship between family and state is where so-called social conservatives get things entirely wrong--where they, in fact, cease being conservative enough, and become something more like Nietzsche's Overman, who lives merely to overcome lesser persons, imposing his arbitrary will. They assume that because the intellectual tradition has seen fit to ground their descriptions of the polity in the union of male and female, it therefore follows that political authorities should legislate in favour of a particular conception of the union of male and female. If that were the case, then one would expect so-called social conservatives to be arguing for a reinstatement of the old household idea of a matriarch and a patriarch ruling over children, servants, retainers, and slaves. But they aren't.
What they are arguing for, in fact, is a peculiar conception of the relationship between the family and the state is that is the quintessential product of 21st century America. This is not, and never was, a question about the family. Heterosexual unions will continue to outnumber homosexual unions. The simplest way to have children will continue to be one man and one woman getting to know each other better--in the biblical sense of knowing, if you know what I mean, wink, wink, nudge, nudge. People will continue to plan to raise families, regardless the situation. They will choose partners accordingly. That's the way things are. These demographic trends were never in question. This always was, and always will be, a question about the relationship between the family and the state. Which is a far more complicated matter.
And you know what? The same intellectual tradition to which so-called social conservatives make their heavy-handed appeals has an answer to questions arising from this far more complicated matter. Distinguish between individual person and the political community, between personal morality and public legality, between personal faith and public reason, yes, even between personal commitment to a communal faith tradition (church) and public submission to the executors of a corporate rule of law (state). Keep that distinction clearly in mind. Don't pretend that the two can be brought in step with each other, as if the corporate body of the state might become the receptacle of one's personal whims and wishes.
Don't pretend the historical record says otherwise. Don't pretend the whole of human history testifies to the truth of a particular way of seeing things. History, strictly speaking, doesn't do anything. It waits to be interpreted. The more one pretends history is on their side, the more one channels Nietzsche's Overman, who rewrites history to serve his own ends, and the less they look like the God-become-man who many in the movement claim to serve.
The best defense of marriage act is and always has been to love your spouse. Only after that much is admitted can we all sit down and have a productive conversation about the relationship between family and the state.
Oh, I should add, in case it wasn't absolutely obvious, I don't see any reason why homosexual unions should not be called marriage.