There is a real irony that the current effort to deconstruct family has seized on the goal of appropriating the term marriage to apply to same-sex partnerships when the cultural developments that have led to such an idea seeming plausible (at least among influential elites) were promoted by unabashed, indeed often vociferous, critics of the marriage institution.
Indeed, the idea a few decades ago was that the U.S. Supreme Court might be on the cusp of inaugurating a new “freedom of intimate association” that would facilitate legal recognition of a dizzying array of adult relationships. That term did not catch on in a significant way but the principle that adult ordering of intimate relationships must necessarily trump considerations of ordered liberty and of children’s entitlement to a married mother and father is clearly in the ascendance among federal judges.
This was accomplished in two stages. First, a hollowing out of the idea of marriage as a legal matter. For instance, this characterization of marriage from a 1972 Supreme Court decision (a precursor to the invention of an abortion right the next year in Roe v. Wade) providing a novel right of unmarried people to access contraception: “the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
It is not surprising that a few decades after the contraception decision, the Court’s characterization of marriage is endorsed as an accurate statement of “the basic nature of marriage” in a decision that proposes a liberty interest in abortion on demand. A decision moreover including this florid statement: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Here marriage is reduced to a type of expressive association made by individual choice (and, if it’s an individual choice, it must follow that an individual ought to be able to un-choose at will). Interesting, too, that this understanding of marriage is explicitly linked to the idea that children are like commodities to be chosen or unchosen by an exercise of the will.
The only step necessary to get to the thinned out conception of marriage that has begun to prevail in the highly-touted court decisions of the last year was for the courts to decree that the government had a duty to facilitate this radical autonomy by giving a legal status to these adult choices.
In a rhetorical sleight of hand, the right to marry thus became the right of intimate association and vice versa. That marriage had served other purposes, related to securing child well-being and community ordering, is apparently forgotten—or more accurately, suppressed—in what Judge Paul Niemeyer of the U.S. Court of Appeals for the Fourth Circuit calls “a dictionary jurisprudence, which defines terms as convenient to attain an end.”
Marriage, now not a public status, but an act of radical self-creation, must of course be open to all types of adult arrangements. Though, so transformed, it must also be closed to the idea that there can be anything unique or uniquely valuable about the joining of a complementary pair.
The court decisions mandating a redefinition of marriage represent a codification of the radical ideals of the sexual revolutionaries who proposed its abolishment. In a neat trick, they accomplished this revolution by making the word marriage (once invoking the ideal of a comprehensive union) mean its opposite—a loose association of two (or more) individuals for expressive purposes.
They make marriage desolate and call it equality.