Marriage Is Suddenly "In"
Talk about marriage is in the air, judging from the interest in the recent book by Linda J. Waite and Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially (Doubleday, 2000). Marriage is suddenly "in" again-at least rhetorically and culturally. Yet even as most Americans believe that marriage uniquely contributes to the common good, not all Americans talk about marriage in the same way. Indeed, things are far beyond talk-they have progressed to all-out combat in courts and legislatures all across America to reaffirm or to redefine this most basic of social institutions.
Last year, for example, California voters rejected same-sex "marriage" while the citizens of Nebraska and Nevada ratified state constitutional amendments reaffirming marriage as the union of a man and a woman. But also last year, the Vermont legislature - under order from the state supreme court - created an arrangement called "civil unions" to grant same-sex couples all the legal benefits of marriage. While many Vermont legislators who supported civil unions were thrown out of office in November, changing control of the Vermont House, the legal push to recognize same-sex relationships continues. On December 19, the Dutch Parliament voted to legalize same-sex "marriage" effective April 1. Only one "spouse" has to be Dutch, so Americans "married" in Holland may be returning soon.
How this public debate will be resolved is not at all clear. The election of President George W Bush gives supporters of marriage and the family reason to be optimistic. Bush stated clearly during the presidential campaign that he believes marriage is the union of one man and one woman. Given that he also stated that law should reflect this understanding, his administration has an opportunity to reaffirm marriage in a way that was not possible under the last one. Yet while they press forward in the next round of the culture wars, marriage advocates need to think too. So much is happening at the intersection of marriage and gay rights, in so many places, and so fast, that events could easily overtake them unless they step back and think strategically about issues, strategy, and goals. The tyranny of the urgent and the nature of Washington may work against this, but policy professionals working on the definition of marriage and related questions must clarify their principles, sort their priorities, and act wisely.
Reflecting on these deeper issues will help deflect attacks from those who work against a principled understanding of marriage and the family. A recurring refrain of those who oppose social conservatives is that they are all fascist wolves in sheep's clothing. While the claim is both ridiculous and insulting, it is often framed differently. The more subtle argument suggests that if social conservatives were in charge, they would be intolerant; they would take the country "back to the Dark Ages." A fair response is to note that if the "progressives" were fully in charge, they would be intolerant. In places where they are, that is often exactly how they act-witness the harassment of the Boy Scouts in certain areas of the country. But still, the question remains: If social conservatives could enact their policies in the United States as she exists today, what would their legal regime look like? To paraphrase Socrates, an unexamined policy is not worth implementing.
Three Competing Frameworks
To answer this question, marriage advocates need to listen carefully to understand what all the parties in the public debate are saying about marriage. While they will not agree with everything being said, they need at least to grasp the frameworks that drive the different policy arguments. A framework is a set of basic concepts that orient lawmakers and advisors involved in making public policy. Many times a framework goes unstated, perhaps for tactical reasons. Yet an examination of legislative arguments and actions will reveal the framework behind the public policy.
For the last twenty years, three dominant frameworks have governed public thinking regarding the question of the legal definition of marriage: Libertarian, Egalitarian, and Traditionalist. Maximizing individual liberty is the policy goal of the Libertarian, perhaps best represented by the Cato Institute and David Boaz's 1997 books, Libertarianism: A Primer, and Libertarianism: A Reader. Viewing society as little more than a bundle of individuals, Libertarians seek as minimal a legal order as possible. They ask, "Why have this law at all? If you must, you should build in respect for private choice." Libertarians love to deregulate and privatize. Libertarians view marriage as a private contract between two individuals. Many Libertarians believe that the government should either get out of the business of licensing marriages or should open marriages to any combination of adults who seek to marry. From a libertarian framework, one could easily argue that legal preferences and subsidies for marriage and marriage-based families are unfair transfers of wealth from unmarried people to married people.
Maximizing social equality is the policy goal of the Egalitarian. No single think tank in Washington today works on the full range of policy issues from an egalitarian perspective. The Center on Budget and Policy Priorities or the interest groups associated with Ralph Nader come closest. Otherwise, most egalitarian policy-thinking is focused on a specific issue or constituency, such as urban issues, unions, children's rights, women, or gay and lesbian rights. On family issues, two key egalitarian-oriented groups would be the long-standing Urban Institute and the newer Center for Couples and Marriage Policy, associated with the Center for Law and Social Policy.
The Egalitarian views society as one community, to be governed by as uniform a legal order as possible. Egalitarians ask, "How can we move everyone toward greater equality by law?" They love to propose sweeping legal solutions for social problems. Egalitarians view marriage as a government-created category that formalizes a relationship. Not surprisingly, most Egalitarians support same-sex "marriage" or its legal equivalent. Some Egalitarians even view the category of marriage itself as a form of inequality and argue that the public, legal status of marriage should be abolished. In this manner, what are currently marital rights, duties, and benefits would be available to all.
As much as Libertarians and Egalitarians differ, in many ways they are cut from the same cloth. The Libertarian focuses on liberty; the Egalitarian focuses on equality. Both aim to liberate the individual from coercion. Libertarians see the individual as primarily threatened by the state; Egalitarians see the individual as primarily threatened by the market. Both oppose any legal approach to the family that would limit the rights of individuals or the state.
Preserving a common moral order through law is a policy goal of Traditionalists, whose representatives can be found at the Heritage Foundation, the Free Congress Foundation, the Family Research Council, as well as the Howard Center for Religion, Family, and Society. Inspired by such works as Russell Kirk’s The Conservative Mind: From Burke to Eliot, the Traditionalist views society as a community of communities that needs a unified moral order through law. Traditionalists ask, "How can the law reaffirm moral truth and thereby preserve and assist institutional and individual habits that lead to a healthy society?"
Traditionalists, many of whom call themselves social conservatives, are the preeminent supporters of marriage as the union of a man and a woman. They view marriage as a social institution that predates civil government and whose purpose transcends civil government. That purpose, built upon human nature, has been the creation and maintenance of families. The Traditionalist argues that because homosexual relationships go against human nature, by definition they cannot be "marriages." Because marriage and the family are so fundamental to social health, the legal order should affirm and support marriage and families. For the same reason, the law should also discourage sexual relations outside of marriage.
The marriage tax penalty debate illustrates the difference in frameworks. Libertarians would abolish the penalty by eliminating the category of marital status and taxing all individuals the same. Egalitarians would either broaden the definition of who is eligible for the tax benefits associated with marriage or join the Libertarians. Traditionalists defend tax policies based upon marital status, because married persons make a unique contribution to society that the law should recognize and reward.
How the Policy Debate Has Changed
Twenty-five years ago, no single framework dominated Washington; an eclectic mix of government and free-market thinking dominated polity discussions, centered in the venerable Brookings Institution (more government-oriented) and the then-insurgent American Enterprise Institute (more market-oriented). This "vital center" was under pressure from the more egalitarian Institute for Policy Studies. The Cato Institute, which would eventually exert libertarian pressure, along with the Heritage Foundation and the Free Congress Foundation, were only beginning. At this time, no think tank engaged in serious work on family policy, or the question of marriage at all, unlike now. When the subject arose, debates were almost always framed as a choice between greater equality through regulation and greater liberty through deregulation.
As issues about family policy had begun to emerge in the late 1970s with increasing urgency, however, policy strategists across the spectrum grew dissatisfied with the vision of society as merely government plus lots of individuals; they sensed that something was missing. What exactly was missing was not clear, but advocates of each framework began to offer new approaches. The "neo-conservatives"-former Egalitarians who had become more libertarian and traditionalist-spoke of "mediating structures" that buffer individuals from an all-encompassing state. This development centered around the American Enterprise Institute, which published the now-classic work by Richard John Neuhaus and Peter Berger, To Empower People: The Role of Mediating Structures in Public Policy (1977), recently republished in a twentieth anniversary edition, To Empower People: From State to Civil Society.
Among moderate Egalitarians, a "communitarian" movement arose; they proposed that public policies should treat people as social beings, embedded in communities, rather than as disconnected individuals. Many of these advocates clustered around Amitai Etzioni, author of The Spirit of Community: Rights, Responsibilities, and the Communitarian Agenda (Crown, 1993), founder of the journal The Responsive Community, and convener of The Responsive Community Platform: Rights and Responsibilities (The Communitarian Network, 1997). Professor Don Browning's project on religion, culture, and family at the University of Chicago Divinity School has also functioned as a kind of think tank on these questions, offering From Culture Wars to Common Ground- Religion and the American Family Debate (Westminster John Knox, 1997). These streams have recently come together in the volume edited by Martin King Whyte, Marriage in America: A Communitarian Perspective (Rowman & Littlefield, 2000).
Likewise, Traditionalists began to reemphasize the importance of "civil society" in grounding the moral values that build character and provide cohesion for the social order. This "civil society" thrust became a focus of the Howard Center, the American Public Philosophy Institute, the Family Research Council, and the Heritage Foundation. In addition, Traditionalists discovered allies in new work on marriage and family at the New York-based Institute for American Values, which issued two key reports, Marriage in America (1995) and The Marriage Movement (2000).
Transcending this search for a more compelling policy framework by "neoconservatives," "communitarians," and advocates of "civil society" was a parallel interest in the relationship between religion and public life. The American Enterprise Institute created a chair for Michael Novak in the late 1970s; in 1982, he published The Spirit of Democratic Capitalism, soon followed by many other works. Brookings followed with Religion in American Public Life (1985) and Values and Public Policy (1993). Also launched in the 1970s were new policy organizations, including the Ethics and Public Policy Center, Woodstock Theological Center, and the Center for Public Justice, that used the Calvinist language of "sphere sovereignty" and the Catholic language of "solidarity" and "subsidiarity" to emphasize both the importance and the diversity of social institutions and voluntary associations. These new groups began to dialogue not only with
existing think tanks but also with mainline Protestant churches, the National Association of Evangelicals, the Baptist Joint Committee for Public Affairs, the U.S. Catholic Conference, and the Union of American Hebrew Congregations. Religious themes easily connected with talk of "community," "mediating structures," and "civil society," even if the role that religion played in the different movements was often wildly dissimilar. This yielded greater appreciation of the legitimacy of religious perspectives on public policy.
The combination of these renewed interests in community and religion has clearly knocked the old policy center off balance in ways few could have predicted a generation ago. The state-versus-individual dichotomy in policy thinking is increasingly a thing of the past; those who seek to reaffirm marriage as a unique institution face a fresh opportunity to reaffirm enduring, age-old truths. That is the good news. The bad news is that at the same time, the old cultural consensus about sexuality and marriage has melted down under the pressure of many different factors. The challenge, particularly for Traditionalists, is how to reaffirm marriage in a culture that is less inclined to look to the law to uphold marriage and the family.
The Function of Law in Society
That challenge can be met, however, if supporters of marriage and the family base their agenda on a coherent understanding of the law and its function in society. In the most basic terms, the roles of the state are to preserve,
protect, and provide, all as ways of promoting marriage-based families. First, government should preserve the legal status of individuals and institutions, while providing a framework in which their rights and duties interrelate. This is primarily a lawmaking function. This includes enacting a basic marriage code, including definitions of who is eligible to marry, the legal rights and duties of spouses, and how government and other institutions such as the marketplace should relate to married couples.
Second, the state should also protect individuals and institutions with a framework of processes and penalties. These should manifest a special concern for the well being of weaker parties. Marriage law should redress evils such as domestic violence and violations of basic duties such as support, while working to ensure that when the tragedy of divorce occurs, a just solution is found for issues of property division and child custody.
Third, the state should provide assistance, based on available resources, to individuals and institutions. This includes everything from marriage-based tax breaks to counseling for distressed families. Government should do so, however, as a supplement rather than as a substitute, utilizing non-governmental actors wherever possible.
These three roles of the state toward marriage are examples of how the law promotes marriage-based families. But the law does not merely promote. It also permits and it prohibits. Promotion and prohibition set the positive and negative limits of the legal order. Permission is what is left alone by law and or handled by private contractual means.
As noted above, promotion is a way in which the law endorses marriage. Because marriage is a unique social institution formed by the union of one man and one woman, the law sets parameters for who can marry. Within those parameters, all individuals must be treated equally. The state properly structures the legal dimension of marriage in terms of status, rights, duties, and, as appropriate, additional benefits to reward or strengthen marriage. It may also establish programs and services to support marriage, including pro-marriage curricula for public schools. This explains why supporters of marriage strongly oppose creating a status parallel to marriage. Such a public status would thereby endorse non-marital sexual relationships and lower the public esteem of marriage. This also explains why supporters of marriage strongly oppose public school curricula that equate same-sex relationships with marriage.
At the other end of the spectrum, the law can discourage non-marital sexual relations by means of prohibitions. It does so based on two judgments: first, the principled judgment that certain behaviors are morally wrong; second, the prudential judgment that the benefit of prohibition outweighs the costs of enforcing it. Examples of past and present prohibitions are same-sex "marriage," incest, bigamy and polygamy, pedophilia, prostitution, pornography, sodomy, fornication, and adultery. Law can also disfavor practices that it does not fully prohibit.
Between promotion and prohibition is the legal zone of permission or "tolerance." Many heated battles today concern which matters fall within this zone. Some people want to move items, like sodomy, that are in the prohibition zone in many states, into this permissive zone. Others want to remove things, like the freedom of employers to make their own judgements about employment and benefits, and put them in the zone of prohibition through "sexual orientation" anti-discrimination laws. Still others believe that many issues currently in the zone of permission should stay there.
In all these cases, supporters of marriage should vigorously resist attempts by the courts to resolve these prudential matters by means of vague principles of privacy or equality. Precisely because they are questions hovering in
the gray zone between promotion and prohibition, these questions belong to state legislatures. Progress on the questions can be achieved here, in the give-and-take of American politics, where policies may be hammered out.
To be sure, supporters of same-sex "marriage" wish to resolve all these "tolerance" issues by moving them from the zone of permission into the zone of endorsement. They want anti-discrimination laws, the repeal of sodomy laws, and same-sex "marriage" because they have one single goal. Supporters of marriage, however, have multiple goals. They not only want to endorse marriage and to discourage non-marital sex, they also want to preserve basic liberties and social institutions for everybody, even for those who attack them. Unlike supporters of same-sex "marriage," supporters of marriage do not see the law as the solution to all their problems. Marriage will, after all, survive regardless of what the state does. Marriage has preserved itself under much worse legal regimes. Therefore, supporters of marriage can afford to think more carefully and strategically about each question they face.
An Agenda for the Bush Administration
Using these principles as a starting point, President George W Bush has an opportunity to reaffirm a positive message about marriage at a time when he might otherwise be tempted to look the other way because of the potential for public controversy. The following agenda would permit his administration to advance marriage on universal terms without engaging in a negative crusade. He would instead be contending for the good of the Republic, providing justice for the social institution that is the foundation of civilization.
From his bully pulpit, the president could endorse efforts to enact state laws that affirm or define marriage explicitly. He could offer his support for the scaling-back or repeal of Vermont's civil-unions law. Such a move would be both strategically wise and politically popular. Recent polling for the World Congress on the Family by Wirthlin Worldwide found that 83 percent of Americans agree with the statement: "The definition of marriage is one man and one woman."
But the president should do more. He should provide leadership to the task of reaffirming marriage in American law nationwide. He should vow that he will never accept the legalization of same-sex "marriage" in American life and that he will do all within his power to stop it. This can be pursued through a number of bold initiatives:
Appoint good federal judges. President Bush will have the opportunity to appoint new justices to the Supreme Court, not to mention hundreds of other federal judges. He needs to consider whether these jurists will do justice to the institution of marriage. Optimally, he should nominate judges who share his principled understanding of marriage. Minimally, he should nominate judges who respect the judgment of the people about what constitutes marriage. Courts derive their authority from the people, the ultimate authors of the Constitution. The willingness of a judge to respect the meaning of marriage, regardless of personal opinion, is a critical sign of his or her respect for the system under which he or she serves. No one should be nominated to the federal judiciary who believes that the courts have the constitutional authority to redefine marriage as other than one man and one woman.
Defend the legal definition of marriage. In 1996, Congress passed and the president signed the Defense of Marriage Act. If same-sex couples arrive from the Netherlands claiming to be "married," President Bush should vigorously oppose their recognition based on the 1996 legislation. In addition, if the constitutionality of the Act is challenged-perhaps in disputes over Vermont civil unions-President Bush should instruct the Justice Department to defend the Act vigorously. When these issues finally come before the Supreme Court, the solicitor general should argue firmly that no matter how many prestigious law professors say otherwise, true liberty and true equality are entirely compatible with a law stating that marriage requires a man and a woman.
If the Supreme Court eventually strikes down the Defense of Marriage Act and forces same-sex "marriage" or its equivalent onto the states, marriage will have been effectively nationalized. Then President Bush, who would generally defer to the states, will be faced with a stark choice. At this point, the response to a Supreme Court out of control would involve only one option. The president will need to demonstrate leadership by advocating the passage and ratification of a constitutional amendment recognizing marriage as the union of a man and a woman. Nothing else will do justice to marriage.
Reinforce the meaning of marriage in federal statutes, regulations, and executive orders. President Bush should execute federal law in a way that preserves the distinction between married couples and unmarried persons and also upholds the right of private organizations to support this view of marriage in their programs. How the Bush administration interprets and applies the meaning of the ambiguous term "sexual orientation" in federal regulations and executive orders will be crucial. The new White House Office of Faith-Based and Community Initiatives and its interagency working group should take the lead in ensuring that social service providers with traditional views of marriage are not discriminated against in the contract award process. This intersection of federal and state law offers a key opportunity to ensure equal treatment for secular and religious service providers alike.
Likewise, the president should instruct the Internal Revenue Service (IRS) not to accept tax returns that attempt to use Vermont "civil unions" as a basis for claiming marital status. When this determination is challenged, the president should instruct IRS counsel to defend these cases vigorously. He should also instruct the Departments of Education and Health and Human Services to make sure that their publications and guidelines relating to marriage and family express a clear understanding that marriage is the union of a man and a woman. Groups that receive federal funding in this issue area should be required to do likewise. Organizations receiving federal support through Charitable Choice should be free to maintain their moral and religious identity even if the law of the recipient state differs.
Defend organizations that support marriage. Private organizations that support marriage and traditional sexual morality are under increasing pressure by government to choose between principles and access. The Boy Scouts are the most vivid example (see back cover). The Bush administration should vigorously defend associational rights in the private sector where marriage and family are involved, most especially where groups are involved in worship, education, and social service. When a private organization is attacked in federal court, the justice Department should proactively defend it, as the prior administration did in cases involving religious liberty.
Reaffirm marriage internationally. President Bush can also make a significant contribution to reaffirming marriage around the globe. The campaign to redefine marriage is not limited to the United States. It involves litigators, judges, professors, and activists from many countries working together to redefine marriage not only in their own countries, but also internationally. The fruit of their cooperative efforts can already be seen, not only in the Netherlands, but also in Canada, the European Union, the United Kingdom, and South Africa. The president should therefore clarify to all countries that because the United States regards marriage as the union of a man and a woman, her government will not grant marital status to same-sex couples, regardless of the law of another country. This is consistent with all international treaties the United States has signed and ratified.
The president should instruct his representatives in international organizations to be equally clear about marriage. In 2001, the United Nations will hold conferences on children, racism, and intolerance. No doubt these settings will be the object of renewed efforts to enact "sexual rights." U.S. delegations to U.N. conferences and other international forums should therefore be instructed to reject any proposed statements or policies that would redefine sexuality or marriage.
These agenda items will not be easy, but by strengthening the institution of marriage at a critical time in American history, they would reap significant cultural dividends. Moreover, they could do so without squelching those who are undecided or opposed. By doing justice to the indispensable union, they would contribute to the building of "a more perfect Union." The agenda will permit the president to declare, without apology: "In my administration, America will preserve, protect, and promote marriage and the family, with liberty and justice for all."
