Is gay marriage a victory for Big Government?
On a new — and bad — argument against same-sex marriage
Congratulations to theologian C.C. Pecknold for managing to construct an original argument against same-sex marriage — the first new one I've seen in quite a long time.
But shame on him, too, for believing anyone would find it persuasive.
The argument, laid out in a column at National Review, runs like this:
Liberal government is limited government — and government is limited by defining a pre-political sphere that the government isn't permitted to enter or control. This is straight-ahead classical liberalism, and nearly all Americans affirm some version of it. We believe the government shouldn't violate our rights to life, liberty, and the pursuit of happiness. This means, by extension, that our homes, bodies, property, and a wide range of our actions are off limits from government interference, unless it obtains a warrant from a judge, or the action transgresses a democratically enacted law or a regulation imposed by a democratically accountable executive-branch department or agency.
The reason why the government is limited in this way is that these aspects of our lives come first. Not necessarily first in a temporal sense, but first in a conceptual sense. We accept the legitimacy of the government because it protects us and the lives we lead apart from the government. We create it, and not the other way around. That's the sense in which our lives, liberty, and various pursuits are pre-political.
Pecknold then takes this unremarkable claim and expands on it in a way that Catholics and other conservative Christians often do. Whereas classical liberal theory holds that individuals define the boundary that the government should not transgress, Pecknold appeals to Augustine and Aristotle to claim that the traditional family is a natural form of sociality that is pre-political, too.
This is relatively uncontroversial. It means that the government can't take your children away from you without just cause (like severe physical or emotional abuse, for example). Or use its coercive powers to enforce a community's desire to sanction arranged marriages. Or decree that a married couple separate or divorce against their will. None of this is controversial; we expect the government to abide by these limits on its power, giving private individuals and groups wide leeway to make decisions about marriage and childrearing without government interference.
But then Pecknold goes one fatal step further — to assert that, unlike traditional marriage, same-sex marriage is not a natural form of sociality. It's an innovation created by the government — and as a creation of the government, it's not properly pre-political, which means that it can't serve as a break on government power. On the contrary, it opens the door to the government grabbing all kinds of new (though unspecified) powers. But that's not all. By (supposedly) weakening traditional marriage, which does serve as a break on government power, the redefinition of marriage to include gay couples positively "serves Leviathan," which Pecknold defines as "the Hobbesian vision of an absolutely sovereign state with ever-expansive control over every aspect of our lives." In this way, the triumph of same-sex marriage helps to hasten the tyranny of Big Government in America.
Pecknold seems like a decent guy, and I've seen him comment thoughtfully on various topics in the past. But this is a stunningly bad argument, and for one simple and obvious reason: Far from being the tyrannical creation and imposition by a would-be absolutist state, same-sex marriage is every bit as pre-political as traditional marriage. Same-sex marriage has bubbled up from below, from many thousands of same-sex couples who want their lifelong (pre-political) commitments to receive the same recognition that traditional marriages have long enjoyed — and from many millions of straight Americans who want the same for family members, friends, and neighbors who happen to be homosexual.
If same-sex marriage were the creation and imposition of a would-be absolutist state, the story of its appearance would have gone like this: In a nation universally and exclusively committed to traditional marriage, the government one day issued an edict declaring that from this time forward men shall be permitted to marry men, and women to marry women, producing confusion, shock, and dismay on the part of the citizenry.
That, of course, isn't what's happened at all.
To those committed for religious reasons to reserving marriage exclusively for opposite-sex couples, the extraordinarily rapid spread of same-sex marriage might feel like this kind of top-down imposition. But the reality is very different. The spread of same-sex marriage is the outcome of a pre-political cultural revolution that produced sweeping changes in the way ordinary Americans think about sex, marriage, and homosexuality. Legal recognition of same-sex marriages is a response to this dramatic change, not its cause.
And this means that the government isn't summarily redefining marriage; it's on the verge of bringing the law into conformity with the fact that ordinary Americans (roughly 60 percent of them in a recent Gallup poll) have already redefined it, in their minds and in their actions. Which is precisely the way limited government is supposed to work, responding to the will of the people rather than acting like a bully that uses coercive powers to force that will into submission.
Now, there is one area where things get more complicated. As I've argued on numerous occasions, when the government forces traditionalist business owners to provide services for same-sex weddings in violation of their religious beliefs, that is an example of government overreach. Calling it "Leviathan" seems like a little much, though I'm happy to describe it as illiberal and un-American.
But simply legalizing same-sex marriage, with proper RFRA protections for its opponents? That's not tyranny. It's life in a pluralistic, liberal society. The traditionalists have lost the public argument, fair and square. Losing might be deeply disconcerting for many. But they might take some solace from the fact that, despite many years of trying, they've never been able to demonstrate to anyone outside their own ranks that traditional marriages suffer any tangible harm from exposure laws that extend marriage rights to a tiny minority of the population.
The spread of same-sex marriage isn't the result of a power grab by big government. It's a response to a pre-political moral and cultural shift on the part of the American people. They are the source of what most troubles traditionalists like Pecknold, not the Leviathan state.