Positive Liberty

There has been a lot of discussion about the California same-sex marriage decision, including questioning whether the state belongs in marriage at all — as well as the old canard that if gays want to marry one another, we are now legally helpless against all those who are eager to marry their pets. (And if Jews are recognized as citizens, pretty soon we’ll have to recognize toads, too!)

Along the way there was also this comment, which strikes me as one of the stronger arguments against same-sex marriage:

It is wrong to equilibrate a generative relationship that provides children both a mother and a father with a NON generative (by design) relationship that provides a mother and guardian or a father and a guardian.

Children are the only reason for marriage, thus gays should not have access to the institution. I thought I’d repost this in reply, since it says everything I think needs to be said about all of these arguments: Marriage is unique to adult human beings, and cannot apply to animals. It is ideally a partnership of two. It is not, however, contingent on the possibility of children. And yes, the government does have a role to play. Here’s why…

Regarding Maggie Gallagher’s recent stint at the Volokh Conspiracy, Cathy Young writes,

[Gallagher] is arguing that the reason the sexual union of male and female is and has always been surrounded by special legal protections, and has been accorded a special status, is that such unions are known to result in children. Take away procreation as a crucial element of marriage, and the rationale for special government sanction for marriage vanishes… it becomes just another private relationship in which society has no special interest. The end result, Gallagher predicts, will be “the de-institutionalization of marriage altogether.” And like it or not, she has a point. Unless children are an issue, why should the government take an interest in whether we settle down with a steady partner in a sexual relationship?

…One more point to ponder: If the primary purpose of marriage is the romantic happiness and satisfaction of adults, then staying together for the sake of the children even if romantic passion and intimacy have gone out of the marriage — an ideal many people who are neither reactionary nor bigoted would like to reclaim — becomes a far less tenable proposition.

Either marriage is for children — or it’s for our selfish romantic desires. One of these two points at government benefits, and that’s what it’s all about.

Now, the argument goes, while society may well need children, and while this may justify government involvement, the government has no business recognizing our romantic desires alone. Therefore children must be the only real reason for a government to recognize marriage. Gay couples might love each other passionately or even romantically, but that’s simply not enough to secure the benefits they want. [...]

The trouble is that “children or romance” is a false dichotomy. Worse, it contains the not-so-hidden premise that government confers legitimacy on marriages. I disagree with all of this.

In reality, marriage is about nurturing, and nurturing alone confers legitimacy. Government accommodates either some, or all, or none of these nurturing relationships, but even non-accommodated relationships may still be nurturing and therefore legitimate marriages.

I want to devote the rest of this post not to any stirring defense of same-sex marriage but merely to a definition of marriage that everyone seems to be ignoring. And why are they ignoring it? Because the language of rights — or romance or babies — is easier to speak. Nurturing is harder to talk about.

It’s harder to talk about, but this, in one word, is the true purpose of marriage. Nurturing is the one essential thing that all good marriages have in common, be they gay or straight, fertile or infertile, octogenarian or twentysomething. Nurturing is the reason for marriage and the goal toward which marriage should lead us.

Marriage is not, as Young [implies], merely about choosing a steady sexual partner. On the contrary, it is a reciprocal agreement with another individual (and often with God), to look after the total well-being of that person and of any children that might come into your mutual care.

This total well-being encompasses all aspects of life, including not just the sexual, but also the spiritual, social, economic, psychological, and physiological best interests of the partner. Ideally, it lasts from the time the marriage is solemnized until the death of one of the partners.

It cheapens the covenant to say that marriage is just about sex, or just about rights, or just about children. Marriage is about all of this — and more. Marriage is a complete, all-encompassing, nurturing relationship. It’s about care for the whole person, so much so that no one else in all the world is quite as important.

(In the argument I offer below, I will use “nurturing” to refer only to these sorts of relationships, even while, for example, siblings may nurture one another in the far more casual sense of the word. These are emphatically not the sort of relationships that I mean — although I do concede that the understanding of marriage offered here can’t really rule out a brother-sister coupling without invoking the outside help of genetics.)

To my mind, the nurturing model explains better than any other the hopes and expectations that modern Americans bring to the institution of marriage. We respect marriage because we admire –and crave — the kind of love that comes from an exclusive, lifelong nurturing bond.

Sure, we may talk about rights or babies, but neither of them would make very much sense if we did not expect marriage to be a supportive and enduring environment for personal growth. We want the rights so that we may grow and develop in the ways that we see fit; we attach babies to marriage because we take it for granted that babies need this kind of nurturing most of all. And romance? It’s what draws us, when we are young, toward a life of steady devotion. It’s the genius of modern marriage to have taken youthful, impulsive romance and turned it toward this purpose. In the old days, money and family did the job instead, much as we hate to recall it.

I also suspect that many find the arguments tying marriage to children persuasive because we so much want our own children to have a nurturing bond as a foundation for their own growth, one that will serve as both a safeguard and an example for later years. Indeed, most of us wouldn’t have it any other way.

But the benefits that children get from marriage do not exhaust or interfere with the good effects that adults may also derive from it. After all, who really wants to grow old alone? It is perhaps the bleakest question in all the modern world. Marriage answers it with the promise that no matter how ill or how deformed we may become in old age, someone will stand beside us until the end; someone will follow us into the unknown.

Next to this, the thrill of having a new sex partner is negligible.

The nurturing model of marriage comports well not only with our common hopes for the institution, but also with Judeo-Christian ideas about love and charity. In the modern era, Judeo-Christian religions have seldom placed any great stigma on the infertile or associated greater virtue with greater offspring. The very best of the Christian message, at least as this infidel understands it, is that we are to love one another as we love ourselves. An all-encompassing, all-nurturing marriage is a mirror of the relationship between God and man, just as all true forms of love reflect their source, which is God.

This model likewise explains why adultery is always a serious problem but not always the end of a marriage. Adultery strongly suggests that deeper problems are at work in a relationship. After all, one of the nurturing partners has a) gone elsewhere for an aspect of nurturing b) potentially exposed the other partner to disease and c) very likely lied about it. All of these are serious problems in themselves and may indicate that others are at work below the surface.

None of this, however, means that the relationship must be abandoned. By contrast, if marriage were solely about sexual fidelity (or romantic passion), it would be reasonable to end immediately all unfaithful marriages, no questions asked. That overcoming adultery in a marriage is commonly thought a loving and redeeming act shows that sex is not the be-all and end-all of the institution.

Many, I suspect, find that homosexuals simply aren’t capable of the lifelong nurturing that marriage demands, or perhaps even that this nurturing has something intrinsically heterosexual about it: To care for a man requires a woman, and vice versa. Yet even while this may be true for a great many people, it does not necessarily follow that it is true for all, nor does it follow that the exceptional cases somehow injure or degrade the ordinary ones.

I would even venture to say, although I am on more speculative ground here, that nurturing also answers Young’s provocative question above: Unless children are an issue, why should the government take an interest in whether we settle down with a steady partner in a sexual relationship?

I concede — happily — that the government has no interest whatsoever in regulating consenting adult sexual relationships.

Government has every interest, however, in watching over individuals as they nurture one another. This is because while sex and nurturing are both natural rights that we all possess as human beings, it is far more difficult to safeguard the right to nurturing.

(A conservative might say that the government has a positive interest in encouraging our nurturing partnerships; as a libertarian, I am content to argue more modestly that the government, as a servant of the people, has a duty to respect the essentially private nurturing agreements that we make with one another — agreements that, in all cultures and religions, are termed “marriage” or an equivalent.)

In the decisions that nurturers make for each other, fraud and abuse may lurk at every important juncture. Trust is essential: Nurturers must often act decisively at the very moments when their partners are most vulnerable and least able to act on their own. A situation like this cries out for an explicit, durable, and binding contract, made in advance. Without it, fraud would run rampant. The contract, though, and the benefits that it offers, are not the basis of marriage; these exist only for the sake of the nurturing relationship.

Protecting the right to nurture requires more than merely looking the other way. The nurtured are vulnerable, and nurturers do things for them that non-nurturers must never be trusted to do. Our natural right to designate (or act as) a nurturer therefore leads directly to a contractual right wherein the government distinguishes between nurturers (who may make decisions for us) and non-nurturers (who must not be allowed to pose as something that they are not).

(Contrast this to sexual rights, which are by definition extended only to adults who can meaningfully consent, and you will see that there really is no conflict between a hands-off policy for sex and a formal codification for marriage.)

To respect the desire of two individuals who wish to nurture one another, a government must make certain that its laws do not interfere with the types of behavior that a reasonable person might want a nurturing caregiver to perform:

–The government has an obligation to respect our determinations about who should make medical, legal, and financial choices for us when we are incapacitated; about how we wish to dispose of our property on death; and about our decision to share childrearing responsibilities.

–The government ought not to compel the separation of nurturing partners merely because one is a foreign national; the citizen in the relationship must be expected to help the alien adapt to our culture.

–The government ought not to expect testimony from one nurturing partner against another; having developed (or at least promised) the lifelong habit of looking out for one’s partner, impartial testimony cannot be expected.

–The government ought to institute a formal process for initiating a nurturing relationship, if only so that the above rights may be unambiguously secured. This should ideally be an act distinct from the various religious rites of marriage.

–The government ought to institute a formal process for ending a nurturing relationship; while marriage for life is generally recognized as the ideal, some mechanism should exist for those who have determined that they will never reach the ideal owing to insuperable obstacles.

As to the tax incentives and/or penalties that accrue to married partners in the U.S., I have no strong opinions — except that they should all be abolished. (I will note in passing, however, that they fall quite unequally on people of different incomes. While many married couples face penalties that they should not have to endure, Scott and I would have saved hundreds of dollars last year if only we could have filed our federal taxes as a married couple. Neither situation is just, and all should be equal before the law.)

This, to me, describes the heart of marriage, its reason for being, and its connections to sex, family, spirituality, and the state.

For heterosexuals at least, I would have to say that our government has done a fairly decent job. It’s provided a package of rights known as civil marriage that apply to those who wish to contract nurturing relationships between two people of opposite sexes. I would fault it, but only slightly, for blurring the line between the religious rite of marriage and the civil status of marriage, but this is a minor quibble compared to all the rest. I might add that I regard divorce as a serious matter, and I am concerned that it is far too common. Whether this is because government makes divorce too easy or because society does not take marriage seriously enough is a question for another post.

In closing, I imagine most people are expecting I’ll offer some inspiring words in favor of same-sex marriage. I won’t.

The goal of my post has simply been to show how “marriage is about kids,” “marriage is about love,” and “marriage is about rights” all fail to address some of the most important aspects of the institution, and how a new model — marriage as the total nurturing of one other person — explains the institution much better than any other.

I will leave it to others to decide whether same-sex marriages are or are not capable of this ideal. In the meantime, I’ll just go on living my life the best I know how.

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