The Purpose of Law and the Aims of Christianity
Lee over at A Thinking Reed has a quick and concise post responding to a long bit by Rod Dreher, which argues against the, “How does Jill and Jane’s marriage hurt Jack and Diane’s” defense of gay marriage, and uses general popular opposition to polygamy to trace why.
Some issues are so morally consequential as to affect the moral ecology of an entire society. Along those lines, do the polygamous marriages at the FLDS compound in west Texas hurt your own marriage? It would be impossible to establish a direct correlation there, but I doubt most people would be willing to relax the state’s ban on polygamy (the matter of underage brides is a separate question). Why don’t we allow polygamous (plural) marriage? Would it keep people who wanted to live in monogamous marriages, gay or straight, from doing so? Of course it wouldn’t. So why not polygamy? Let’s hear the secular rationale for banning plural marriage. Please take care to explain why it’s okay for the law to forbid consenting adults who want to live in plural marriages from doing so, but we have a constitutional imperative to allow same-sex couples to do this.
Actually, I think that logic is more or less unassailable; it isn’t okay for the law to forbid polygamy. Yes, most people instinctively assert that polygamy should remain illegal, but that doesn’t mean they’re right. It just means they’re reacting instinctively, which is to say, how they’ve been conditioned. If a particular practice of polygamy doesn’t involve forcing minors into marriage, as I understand the polygamous sect in Texas which was recently raided was doing, is there actually any reason to bring in the feds?
Dreher’s suggestion that protection of the moral ecology would be a valid reason brings me to my first question, which is secular: Does the law actually have any business protecting the moral ecology? I’m not at all sure it does. Which is not say that I don’t think the moral ecology is important. (Though I imagine I disagree with Dreher over what the content of that ecology is, even more so than Lee.) I just think the moral ecology is the culture’s problem, not the law’s problem, and I think the distinction is important.
Assertions that the law is supposed to “embody a society’s values” or serve as a “moral tutor” strike me as relying on a conception of how the law is produced by the legislatures and enforced by the criminal justice system that is thoroughly romantic and unrealistic. Getting back to Lee’s point that gay marriage is distinguishable from slavery or abortion in that it causes no one harm or infringes on their freedom, it seems to me that those two instances or the only ones sufficiently concrete to direct an instrument as blunt and corrupt as the law. (And while I certainly don’t deny that divorce, for instance, causes real harm, it would be madness to make breaking the heart of your spouse or child an illegal act.) Generally speaking, in our liberty-based constitutional system, if you can’t cite concrete harm or infringement of liberty, you have no business invoking the power of the government to fine, imprison or restrain. Laws are not abstract; they do real things to real people.
That said, I can think of two grey areas in this. The first is that it seems like there should be some leeway given to individual communities via their legislatures – be they municipal, state or federal – to enforce particular standards for behavior in public. This is why no one is expecting Lawrence vs. Texas to be used to overthrow laws against public nudity or zoning ordinances that keep the strip bars at the edge of town. It would also leave communities free to regulate business practices or designs in their area they may object to, such as a suburban development on a watershed. (At the same time, a place like Austin, God bless it, can have a law saying women, like men, may go around without a shirt in public should they so choose. Not that anyone actually takes advantage of it.) But even here, the lines are pretty easy to draw: if it isn’t public, plus it isn’t harmful or liberty-infringing, it’s out of bounds. Which means anything goes in the bedroom, including not only gay marriage, but, yes, polygamy, bestiality, drug use, adult incest and the whole rest of the sordid list ad nauseum.
The second grey area, which I think is very interesting, is how far an individual community may go in regulating the treatment of living beings which are not technically persons under the Constitution, such as animals or the unborn. I don’t really have a full answer for this one, but I can say that as I have become more sympathetic to the animal rights argument, and would support any community’s attempt to outlaw animal testing or factory farming within its borders, for example, I have cautiously become more sympathetic to aspects of the pro-life argument as well.
This brings me to my second question: Is marriage in fact “sacramental” under Christian theology? I’m not so sure. Correct me if I’m wrong, but I think you’ll search both the Gospels and the letters of Paul in vain for such a description. Indeed, both Christ and Paul come off as remarkably nonchalant about marriage and children: do it if you like, but if it’s not for you, that’s fine too. What matters for both men are the universal moral duties we owe all our brothers and sisters, both as Christians and as human beings. The obligations we owe to our spouses or our children – should we choose to have either – are extensions of that more basic network of interdependent obligations, not separate or higher forms. Adultery and divorce are immoral, not because there is something special about marriage or family, but because, well buddy, you promised “’till death do you part.” So honor your promises. As Stanley Hauerwas has put it, marriage and family are vocations for Christians, not requirements, and I don’t think vocations qualify as sacramental.
Christianity, it seems to me, has always been opposed to an atomistic culture, rather than an atomistic family structure. And history has seen plenty of forms of social organization in which it is the tribe as a whole rather than the individual parents, or the much ballyhooed “nuclear family,” that raises children. It is not obvious to me that a society based on interdependence and mutual trust inherently necessitates a “domestic” or non-atomistic family structure, or that Christian theology would demand the latter in the name of the former. So maybe Dreher’s invocation of Carle Zimmerman is correct, and the modern “atomistic” family is bad for civilization and maybe not, but I’m not at all sure it matters from a Christian standpoint either way.
Nor am I quite sure wait to make of Dreher (by way of Zimmerman) and other conservatives bemoaning the rise “contractualism.” If what they mean is the distinctly capitalistic practice in which each side, by way of negotiation, seeks the optimal amount they can exploit from the other, then I am in agreement with them. But in the manner they use “contractualism,” it seems equally likely they’re refering to what should more properly be called a covenant – the embedding of two or more people (or God!) in a framework of mutual trust and commitments. Those also arise from choice and freedom and the exercise of individual conscience and everything else that sends conservatives scurrying for the safe shadows of “higher authority.” And if that is what they are decrying, then they are quite mad, frankly.
At any rate, the Good News of Christ and the Resurrection hardly requires familial bonds in order to spread. So Christians do not necessarily need to reproduce themselves in order to perpetuate Christian culture. As long as somebody out there is reproducing – and I seriously doubt we as a species will ever stop, though we may slow way down, which hardly seems a bad thing – there will always be someone new with which to share the Gospel.
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