I had the opportunity recently to participate in a panel discussion at the Family Research Council in Washington, D.C., on the influence of the ideas and culture of the 1960s on the family policies pursued by the government today. The conference was sponsored by the journal The Family in America.
The other panelists were Ryan MacPherson, who talked about how no-fault divorce became entrenched through a combination of inaction by religious groups and an aggressive push by the legal industry; and Anne Roback Morse of the Population Research Institute, who talked about the powerful forces behind the United States’ aggressive promotion of contraception and sterilization, sometimes without consent, in minority communities and in other nations.
My portion of the discussion focused on how, in the 1960s, the U.S. Supreme Court began actively promoting in its decisions the ideologies associated with the sexual revolution. Where before the 1960s, what I described as Act I in the drama of marriage and family in constitutional law, the Supreme Court had pretty consistently recognized the inherited wisdom about marriage and family, specifically: “[S]exual expression was a moral act with significant consequences. Marriage was the only licit setting for sexual expression. It united two very different types of people, a man and a woman, and the union was not merely an expression of momentary desire or even of calculated bargaining but a real joining which created reciprocal obligations and obligations to the children the union alone could create. Though the act of marrying was freely chosen, its consequences could not really be. Children born to married couples enjoyed the blessing of belonging and a setting of stability, complementarity and usually biological connectedness.”
In the mid-1960s, the intermission of the play, the Court began to talk about marriage in a radically different way. The most famous Supreme Court case referred to marriage as an “association” rather than a union of two people which was “hopefully” enduring.
When the curtain went up for Act II, the Court’s treatment of family was now nearly the polar opposite of what it had been. The Court’s decisions began to treat marriage and non-marriage as essentially equivalent, marriage and family as mere lifestyle choices important only to the degree they allowed individuals to express themselves in increasingly idiosyncratic ways.
The Court’s logic followed a predictable pattern, endorsing contraception for married then unmarried couples, creating a right to abortion, requiring the state to facilitate contraceptive access, striking down distinctions between households of families and households of unrelated people (like “hippie communes”), and on and on; most recently striking down the federal law definition of marriage as the union of a husband and wife.
The ideology the Court majority now seems to endorse “imagines no differences of significance between men and women. Sexual expression is a means of obtaining pleasure, though it may rise to an act of self-creation since it is the most potent item in the toolkit of expressive individualism. By rights, it ought to have no consequences that are not freely chosen by the consenting individuals. Thus, each has a right to be shielded and, indeed, the state has a duty to shield individuals, from those consequences (by increasing access to contraception or streamlined divorce). If consequences—pregnancy or unhappiness, for instance—still show up, the state must provide other escape routes. No freely chosen sexual coupling is illicit and none should be privileged above another. Civil marriage is but a manifestation of individual will, valuable because it allows the state to bestow dignity on individuals by valorizing their intimate choices. If the parties desire, marriage could be useful to the project of ‘defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’ Secondarily, marriage may be accessorized by children who may provide personal satisfaction to the spouses. These children will presumably be benefitted by access to the resources of two adults and to the government benefits provided to married couples.”
The same-sex marriage cases the Court is now considering give the Court an opportunity to step away from its ideological project of reframing norms of morality and redefining marriage and an opportunity to decentralize decision making power regarding the family.
Whatever the Court does, the current ferment over marriage provides an opportunity for other institutions, like churches, to champion the competing model of marriage and family rooted in experience and inherited wisdom.
An archived version of the lecture can be found at www.frc.org/university.
William C. Duncan is director of Sutherland Institute’s Center for Family and Society.