Positive Liberty

Mark Olson has some very interesting comments on my post “Marriage Against the State.” His first point is as follows:

Marriage has been, historically and socially perhaps even “humanly”, been regarded as more than a contractual matter. A sacramental, liturgical, and eternal significance has almost universally been attached to this event. The phrase, of “pledging our troth before man and God”, is common because it is …, well, common. Marriage (first marriages at least) makes sense as celebration and virtually all cultures that aspect is there in abundance. There is also universally a religious aspect. At the very least, shared liturgical praxis is a to touch the sacred. Charles Taylor in A Secular Age begins by looking at the word “secular”. “Secular” comes from the Latin, saeculum, meaning a period of time. A liturgical rite, in a primal fashion, is a denial of time. It is meant to forge a connection with all the other rites that are the same. The Eucharist for example is a forging of a connection with the first Eucharist during that passover night almost 2000 years ago and every other Eucharist performed everywhere else since then. Marriage ceremonies are the same, a denial of time. This connection between the lover’s bound in marriage and eternity is almost as universal.

He’s right. Consider my own marriage, in which two men, both unbelievers, married one another. Granted, Mr. Olson might not think of it as a marriage. Yet even this was assembled of things — items, gestures, words — that we found to stand apart from ordinary time and to touch the eternal. The flowers were grown in our own garden; they both were and, in a sense, were not our creations. The wine was a handcrafted mead that I’d made myself (we still have a few bottles, and we take one out on every anniversary, to taste how it’s changed through the years). Scott wove the ribbon we used in our handfasting (Yes, handfasting is mostly a myth. But there’s a reason that myths appeal to us, and it isn’t historical veracity.) At difficult moments, we still repeat lines from our wedding vows, which we wrote for ourselves, to be reminded of the people we are trying to be for one another.

Maybe it’s just so much performance art, and maybe there are no metaphysical strings attached. Same difference. We did what we could to reach for the eternal, knowing full well that the gestures might be meaningless in the metaphysical sense. They are certainly of doubtful meaning in the historical sense: They would be offensive to the past; quaint and stilted to the future. We’re moderns, and we know that that’s how time moves. Yet as the historian said, every age is immediate to God.

It strikes me that none of this has anything to do with the state. It’s the most voluntary thing in the world, from the deepest and truest parts of ourselves. Compulsion has no footing here. And therefore neither does the state.

Or so it would seem. Olson continues:

Over the last 500 years a concerted almost continuous effort to “civilize” Western culture has been ongoing. This effort has had a great deal of success. It has however been a great effort. Persuasion and teaching on “right behavior” has been performed at a variety of levels and through many organs, from the state, schools, churches, university and so on all have tried to brow beat the common herd (and the rest) to acting in a civilized manner. When one looks, for example, at the behavior of nobility during the War of the Roses and compares it their counterpart in the Elizabethan era or today, one comes to realize how far we have come down the road of civility. One of the crucial elements in passing down the advances and instilling “right behavior” in the next generation is in the raising children in stable two-parent families. Marriage is not just of interest to individuals, it is a crucial linchpin in retaining civilization. In the absence of families teaching their children how to behave and how to live and being a good example, the project, begun 500 years ago, will fail. The state has an interest in marriage, it is not just that people have in interest in marriage to protect them from the state.

Now I actually agree that children have certain positive rights — that is, children do properly impose obligations on adults, not merely to let them alone, but to intervene actively. Libertarian theory simply doesn’t apply to four-year-olds.

But apart from the obvious (food, clothing, shelter), the exact nature of these obligations can be pretty hard to pin down. Yes, there must be an education, an upbringing — but there are as many variations on this as there are adults in the world. Catholic school? Montessori? Do you spank, or not? Cloth diapers or disposables? Somehow, the civilizing process must go on, and yet it can be very hard to tell exactly how to do it. For this reason there are substantial legal protections for many different kinds of families.

Many of these protections are actually defenses against the state. This was the point of my original post: Often, the “state” parts of marriage are really just things that the state agrees it will not do. Libertarians should be happy about these things, because any time the state agrees to stay out of private life, we’ve won a little victory. If we just “get the state out” — of marriage, then the state will promptly find its way into our families, in all sorts of unwelcome ways.

The history of the West can be thought of as the advance of civilization — of manners, cultivation, knowledge, and right behavior. But it can also be thought of as the advance — and retreat — of private life, against the demands of tribal, racial, national, or other unchosen collectives. The history of liberty is the history of resistance to state power. History is about civilization, but it’s also about autonomy and the full development of the self, as opposed to the herd, the tribe, or the state.

Olson concludes,

Alas, one of the problems for the gay couples in our community is that, while the individuals find some measure of protection in marriage, the state itself has much less to gain from protecting them. The last two generations have seen a relaxing of the “project” of civilizing man and the loss of manners surrounding us bespeaks this, especially as demonstrated by so many of the young. The state enforcement of standards of behavior and putting its intrusive fingers in marriage is not merely an annoyance. It is likely a necessary evil.

Alas, alas. The trouble I have with this sort of hits me on two levels.

The political theorist in me wants to say that the state’s own interest is not necessarily on the side of civilizing man, or of bringing up virtuous young. The state’s interest, rightly considered, may be to do these things. But in practice, the state behaves as though its interest were always to grab more power.

The agents of the state may just like it very well that gays can’t get married, because it means that they get more power over us than they do over straight couples. They may really enjoy the fact that they get their own neat little categories of people they are allowed to dominate — the unpopular, the weird, the difficult, the marginal. It’s certainly how state actors have behaved more often than not.

So much for the political theorist. Now let’s put a human face on the issue:

Janice Langbehn and Lisa Pond had planned to take their three children on a family cruise. The Olympia, Washington couple had been together 18 years and with their children were looking forward to the holiday.

But just as they were about to depart on the cruise from Miami, Florida. Pond, a healthy 39-year-old, suddenly collapsed. She was rushed to Jackson Memorial Hospital in Miami with Langbehn and the children following close behind.

But once Langbehn and the children arrived at the hospital the hospital refused to accept information from her about Ponds’s medical history. Langbehn says she was informed that she was in an antigay city and state, and she could expect to receive no information or acknowledgment as family.

A doctor finally spoke with Janice telling her that there was no chance of recovery.

Other than one five minute visit, which was orchestrated by a Catholic priest at Langbehn’s request to perform last rites, and despite the doctor’s acknowledgement that no medical reason existed to prevent visitation, neither she nor her children were allowed to see Pond until nearly eight hours after their arrival.

Soon after Pond’s death, Langbehn tried to get her death certificate in order to get life insurance and Social Security benefits for their children. She was denied both by the State of Florida and the Dade County Medical Examiner.

Is this what we mean by protecting children? Short of physical torture, I can’t think of anything more hurtful.

Is this what we mean by the sacred? Then I side with the profane.

Is this what we mean by the “project of ‘civilizing’ man”? Then consider me a barbarian.

Sorry to pull out the rhetorical big guns here, but this is not just an unfortunate oversight. It’s not just under-incentivized behavior or offhanded neglect. With the state’s blessing, they kidnapped a dying woman.

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