Marriage debate at Volokh
There is a very long and thoughtful post on same sex marriage issues over at Volokh, from guest-blogger Maggie Gallagher. It's drawn an extraordinary number of comments (283 when I checked).
It raises an interesting point relevant here:
I tend to take a libertarian view of marriage - it ought to be a matter of contract between the participants and the institution certifying the marriage. If the state is going to get involved, however, it ought to not be mucking things up by making them worse - and introducing unilateral divorce clearly made women and children worse off by reducing their bargaining power relative to men. I'm not shoved off my prior belief that marriage ought to be defined by the institution certifying it, and that the institution ought not to be the state, but Gallagher's discussion raises some very interesting issues.
It raises an interesting point relevant here:
Remember how we were promised that unilateral divorce would expand liberty, and only affect people in bad marriages? Meanwhile the government reduced everyone’s marriage contract to the status of a gambling debt--alone of contracts, marriage promises cannot be enforced. Unilateral divorce changed the whole culture of marriage, not just those who divorce. And the people who advocated for it were so sure that more divorce would make children better off, weren’t they? Only a fool, or a religious zealot, could disagree.
I tend to take a libertarian view of marriage - it ought to be a matter of contract between the participants and the institution certifying the marriage. If the state is going to get involved, however, it ought to not be mucking things up by making them worse - and introducing unilateral divorce clearly made women and children worse off by reducing their bargaining power relative to men. I'm not shoved off my prior belief that marriage ought to be defined by the institution certifying it, and that the institution ought not to be the state, but Gallagher's discussion raises some very interesting issues.
Posted by Andy Morriss on
Friday October 21, 2005 at 5:26pm
First, while I agree with the general thrust of your comments, I would be remiss if I did not point out that in a few cases (primarily physically abusive marriages) no fault divorce is at least of some advantage to women and children. That said, note please the string of qualifiers to my last sentence. Divorce is never a good thing and we ought not to present it as such. Sadly, we seem to have ne real societial alternatives to divorce.
Second, I think that the heart of Gallagher's argument is that marriage laws can never be purely private or purely "between the participants and the institution certifying the marriage." Why? As she so economically states her case: "Sex makes babies. Society needs babies. Babies need mothers and fathers. This is the heart of marriage as a universal human idea."
It would seem to me that society as a whole has a vested interest in marriage (which I would not describe or qualify as "heterosexual" marriage anymore than I would refer to "unmarried" bachelors or "four-sided" squares). The problem as I see it is that because we lack mediatiting institutions--or rather because these institutions are increasingly less important for increasing numbers of people in our society--we have no where to turn to sustain the community of marriage.
Like it our not, how my non-Orthodox or non-Christian neighbor lives does have consquences for my life. How, can I/we encourage marital fidelity (which is not only for my neighbor's good, but the common good, and those my good) in those members of society who do not subscribe to any religious tradition? In other words, what can be done in the public square to replace the ontological individualism that is becoming increasingly the norm in society?
Finally, even if we hold (as I am increasinly prone to do by the way) "that marriage ought to be defined by the institution certifying it" we cannot overlook the corrosive effects of societal practice on the Church. It seems that, at a minimium, the Church must take an firmer stand on issues of sexual ethics in general and marriage in particular. What this means I'm not whollly certain, but we might reconsider the patoral implications of some common practices.
For example, typically, we (i.e., Christian ministers of whatever tradition) will marrying couples who are living together without asking them to separate first. With the noticable exception of the Church of Rome, most Christian communities (and I sadly must include the Orthodox Church here) seem to have largely embraced the idea of divorce and remarriage as--if not quite acceptable--certainly no big deal. As for artificial contraception--I fear for the preacher who preaches against this on Sunday morning.
So maybe, the best response (as the abolitionist Quakers did before us) is to make sure that our own (Christian) houses are in order. While certainly Christians should be involved in the public debate, I think our witness would be more credible--to God if not the world--if we made certain that we do not practice the same immoralities that we (rightly) condemn in the world.
Forgive me if I have offended.
In Christ,
+Fr. Gregory
The sources are quite HardColdLibertarian, but the situation is part of the context for everyone, has as +Fr. Gregory notes, consequences for our life. "Child welfare" will probably always be in the purview of the state.
http://mangans.blogspot.com/2005/10/links.html
summarizing http://www.lewrockwell.com/orig2/baskerville8.html
The economic case against no-fault divorce is that it reduces the bargaining power of the party who wants to stay. Since women are usually not the party who wants out, no-fault divorce disadvantages them at the expense of men who want to leave. Since women usually get the kids, it also hurts them by reducing the post-divorce economic position of the custodial parent.
Part and parcel of abuse is the ability of the abuser to convince the victim that the abuse is justified and that no one would defend the victim. We ought not to forget that abuse is not merely physical but also psychological and spiritual. Victims often do not believe that anyone is on their side. Worse still, they will often accept the view of the abuser that they (the victim) are the cause of the abuse.
The scenario that Andy outlines as "extremely unlikely" from the point of view of the law, is pretty much business as usually in the world of abusers and their victims. While not ideal, no-fault divorce can provide the victim with an easier out.
That said, I am reminded of my moral theology professor's observation (borrowed from Scholasticism) that hard cases make bad laws. And I agree with Andy, that no-fault divorce is usually NOT to the advantage of women of children.
And so the question remains, what is it that--practically speaking--the Church can do to offer an alternative to the world's increasing contempt for marriage?
In Christ,
+Fr. Gregory