Thursday, July 10, 2003
More surrender from The National Review, this time from John O'Sullivan who posits replacing a uniform understanding of marriage with a balkanized collection of different systems: traditional religious marriage, gender-neutral civil marriage, and polyamorous (or not amorous at all) householdship.
This is madness. Here's why:
First, the abolition of companionate marriage (which is what he's effectively suggesting) means either the abolition of fatherhood or the abolition of the family as a concept in law. Observe: a polyamorous collective of twelve persons has between them eight children in various combinations. The collective then dissolves. Who has custody of the kids?
The courts will have to come up with some answer to this sort of question. They will not break the collective up retrospectively into biological pairs; that would be an intolerable insult to the collective and would also make for truly absurd shared custody combinatorics. They will therefore either adopt a rule of thumb, or they won't and will decide every case in a discretionary, ad-hoc manner. The only plausible rule of thumb is to grant custody to the mother. A household would therefore be any number of mothers and their children and additional hangers-on. Hence the abolition of fatherhood. The latter choice - ad-hoc granting of custody to whomever the courts deem most appropriate - leads inevitably to a situation where the courts understand themselves to have the right to remove or assign children from any given family arrangement according to the best interests of the child. Hence the abolition of the family. We are already moving down this road, but so long as marriage remains companionate (even if it can be same-sex), the mathematical problems do not become overwhelming. But plural marriage (or householdship) would tear it.
Second, if religious marriage is to have the status that O'Sullivan would like it to, religious bodies would have to be able to enforce their laws - i.e. they would have to have access to the state's coercive power. How else could religious bodies' strict rules have force in matters of inheritance, child custody, divorce, etc? If a man has a Catholic wedding, abandons his first wife and then marries a second woman in a Mormon temple, what is his (and their) status under law? According to O'Sullivan's scheme, there are only two choices. Either the Catholic church can, on its own authority, render a judgement against the bigamist, and get the state to enforce that judgement with its police power, or it cannot, in which case its stringency is toothless. In the latter case, we can predict what the consequences will be for strict private legal systems that have no police power: they will become ever more insular, trying to shut out those who might join but be inclined to flout the rules of the group, and resistant to any internal reform as a threat to the precarious authority of the sectarian system. How do we know this will happen? Because it is precisely what has happened to Orthodox Jewry which has just such a sectarian legal system.
But the former case is even worse: the state ceding a significant portion of its power over "personal status" issues, and enmeshing itself in the internal workings of religious denominations. This is the situation throughout the Middle East, including Israel, and it has been a disaster for the state and for religous groups, as religious authorities become corrupted, the state interferes in religious teaching and, worst of all, as the state is forced to decide which of competing religious authorities is to rule in cases where they differ. There is no getting around this. A man dies without a will leaving behind two widows: one he married in an Reform Jewish ceremony, the other in a Mosque after converting to Islam, neglecting to divorce his first wife. Which woman inherits? A woman cohabits with a man, bears him a child, then he converts to Islam and she to Wicca. The man absconds with the child one day, and waves a ruling from an imam that forbids the mother from coming near the children because she is a devil-worshipper. The woman gets a wicca priestess to rule that fatherhood is a fiction and that the children must be returned to her. How shall these dispute be resolved - with pistols?
What I find most amusing is that while some are ready to abdicate the state from opining on marriage rather than attempt to resolve the controversy about its nature, in a number of religious denominations the same thing is happening: the denominations are questioning whether marriage really is a religious matter at all, or whether it should be left up to the state. I know this has been debated among the more liberal of the Lutheran synods in this country, and I've had conversations on the matter with Unitarians and even Episcopalians who doubt whether marriage really is a sacrament, or whether this was historically just an artifact of the Church's role as the only source of law in the Dark Ages, and something that is not properly of spiritual concern. Someone has to be willing to stand up and defend marriage. If conservatives would prefer to see the state get out of the marriage business rather than see the state endorse gay marriage, I'm going to abandon my middle position (in favor of gay civil unions, against domestic partnership laws, against gay marriage) and go over to the other side. At least there would be something of a common culture left to defend.