CONSERVATIVE MISCONCEPTIONS ABOUT MARRIAGE
– AND WHY THEY MATTER
Stephen Baskerville[*]
Patrick Henry College
Abstract: The campaign to defend traditional marriage has been marked by serious and very fundamental misconceptions about what marriage is, what social purpose it serves, its relationship to the state, and what precisely is now threatening it. The result has been an ineffectual campaign that has been constantly on the defensive and that has now lost decisively to the ideological attacks from the radical left. Most conservative groups are trying to save marriage on the cheap, without confronting the larger problems and dynamics that precipitated this problem in the first place and without demanding sacrifice of sentimental fixations that some cannot discard even when they are demonstrably false. This has been predicted for years by people who argued that this campaign has refused to engage with the larger issues that have undermined marriage for decades: including divorce, cohabitation, fatherhood, and the welfare state. Moreover, the stakes continue to be high, since the sexual left will not stop with marriage. Not only the family but civic freedom are now under direct attack from ideologues of the left. The paper establishes some very clear and irrefutable truths about marriage and the social and political order that will make very clear why we continue to lose and what must be done differently to avoid even more serious losses. Some of these truths may be painful to accept, not because they are not true, but because they will require a significant redirecting of priorities. Yet they absolutely must be faced if marriage and with it freedom and the civilized order are to be preserved.
It is very clear that the effort to defend traditional marriage is losing very badly in the West, if it has not already been lost altogether. This defeat has been predictable for years, because it was clear from the logic and dynamics marriage itself and of the politics surrounding it.[1] It is simply not possible to preserve traditional marriage the way it has been attempted. Moreover, it will not stop with marriage. It is very clear that sexual radicalism is an extremist political ideology that is concerned with much more than marriage and whose operatives will not be satisfied until all the obstacles to their power are in prison or in fear of it.
Defenders of traditional marriage have been working from surprisingly simplistic and superficial understandings of what marriage is, what purpose it serves, and what precisely is threatening it. They are trying to save marriage on the cheap, without confronting the larger dynamics that have precipitated this confrontation in the first place and without demanding the necessary sacrifices of their followers. I want to state some very clear and simple truths about marriage and the social and political order that simply must be accepted and that will make very clear why the effort continues to lose and what must be done differently. Some of these truths may be painful to accept, because they demonstrate the need for a significant redirecting of priorities. Yet they absolutely must be faced if marriage and with it freedom and the civilized order are to be preserved.
1. MARRIAGE CREATES FATHERS
First, some clichés of conservative groups must be discarded. For all their eloquence over the virtues and benefits of marriage, conservative advocates have singularly failed to elucidate why the institution exists.[2] The main argument, in summary, seems to be that same-sex marriage is unacceptable because the purpose of marriage is procreation.[3] But the purpose of marriage is not procreation. Tens of millions of single mothers attest that procreation is perfectly possible without marriage. This fallacious platitude is easily refuted by the advocates for same-sex marriage, who point out that fruitlessness of many heterosexual marriages.
The purpose of marriage is not procreation but fatherhood: Marriage allows children to have fathers. Once this is understood, everything else about the current problems of marriage and the family falls into place. Other benefits are correctly claimed for marriage, but they are secondary. In the end, the central one is this, to establish fatherhood.[4]
Once this is recognized, it becomes clear that gender-neutral marriage is a contradiction in terms. Moreover, the homosexualists can have no answer, because even fruitless marriages can adopt, and the children will still have a father. This also reveals same-sex marriage as not simply an oxymoron but an ideological attack on civilization’s most basic institution by radical ideologues who targeted fatherhood before they targeted marriage. But also, once this is understood, the only effective way to preserve traditional marriage and effectively sexual radicalism becomes very clear and very feasible.
Not only is marriage not a “gender-neutral” institution; it is not a gender-symmetrical one, because motherhood and fatherhood are not symmetrical. As Margaret Mead pointed out long ago, motherhood is a biological fact, whereas fatherhood must be artificially constructed by society.[5] The principal institution for constructing it is marriage.
Marriage turns a man from a sperm donor into a parent and thus creates paternal authority, allowing a man to exercise the authority over children that otherwise would be exercised by the mother alone. Feminists understand this when they renounce marriage as an institution of “patriarchy” and encourage single motherhood and divorce as positive goods for their own sake.[6] Instead of recognizing this truth, conservative sentimentalists labor another tired cliché: that marriage exists to civilize men and control their promiscuity.[7] If so, it performs this role as part of a larger function: to protect the father-child bond which constitutes the intact family. This point, potentially the strongest in their case, is overlooked by traditionalists who argue that marriage undergirds civilization. For it is the presence of the father that creates both the intact family and, with it, the civil institution itself. The philosopher Thomas Hobbes attributed to married fatherhood a central role in the process of moving from primitive nature to civilization. In nature, Hobbes argued, “the dominion is in the mother”:
For in the condition of mere nature, where there are no matrimonial laws, it cannot be known who is the father, unless it be declared by the mother. And therefore the right of dominion over the child dependeth on her will and is consequently hers.[8]
Only in civilized society, where “matrimonial laws” do operate, is authority over children shared with the father.
It fact, for all the ink spilled over delineating the proper role of the state in marriage, tax incentives, and so forth, it is probably safe to say that the only truly essential role of the state in marriage (and this shows why it does have a role, pace some libertarian advocates for complete privatization) is to guarantee the rights and authority of the parents, and particularly the father.
Our legal system has long insisted that marriage, not sperm, defines the father. The legal standard was Lord Mansfield’s Rule (similarly provided in the Napoleonic Code), stipulating that a child born within wedlock is presumed to be that of the husband. This rule enabled a marriage to survive the wife’s adultery.[9] (Earlier ages had perhaps a more balanced assessment of the female and male tendencies toward promiscuity.)
The role of marriage in creating paternity is most starkly seen in its absence. Today, the widespread weakening and breakdown of marriage produces an epidemic of fatherless, not motherless, homes. (Motherlessness often follows, with the children ending up in state care, but fatherlessness initiates the process.) The father is the family’s weakest link, and without a determined effort, institutionalized in marriage, he is easily discarded.
This is now too apparent to require elaboration: American inner cities, Native American reservations, the north of England, the banlieues of Paris and Marseilles, much of Africa – all are impoverished, crime-ridden and drug-infested matriarchies. And close behind are more affluent communities. Fatherlessness – not poverty and not race – is the foremost predictor of virtually every social pathology among the young: crime, substance abuse, truancy, and now, almost certainly, terrorism.[10] Without fathers, adolescents run wild, society descends into chaos, and the leviathan state rationalizes more spending and more power for itself to maintain order.
2. SAME-SEX MARRIAGE CREATES NEITHER CHILDREN NOR FATHERS
Several practical consequences follow from this truth. The most obvious is that it demonstrates far more effectively than the usual conservative clichés the necessarily dysfunctional nature of same-sex marriage. Even those who insist that it must be limited to “one man and one woman” seem almost oblivious to the clearest and most compelling evidence: the critical role of marriage in creating fatherhood.
Here is where same-sex marriage can be seen as the solvent of the most socially stabilizing feature of marriage. Judge Vaughn Walker’s finding of “fact” in the California Proposition 8 case that “Gender no longer forms an essential part of marriage” is rendered preposterous, because sex difference is quite clearly at the essence of marriage. Marriage reconciles one of the most basic differences between the sexes: the fact that one sex has an indisputable biological connection to her offspring whereas the other must have his bond with his children deliberately established by social convention and legal guarantee. This is why, as the late Phyllis Schlafly succinctly observed, “The trends toward non-marriage and toward same-sex marriage are a direct attack on fathers.”[11]
Marriage between two men or two women simply mocks the purpose of marriage. It attempts to apply gender interchangeability at precisely the point where sex difference demands that biological fact (motherhood) be reconciled to social necessity (fatherhood). But far from defining paternity, and therefore a stable family, same-sex marriage compounds the problem of who precisely are the parents of a given child. A presumption of “parenthood” confers parental status on any individual (or individuals) recognized as “married” to another individual who acquires a child by whatever means. Maggie Gallagher calls this the problem of “too many parents.”[12] A California proposal to legalize multiple parents (said to be somehow in the children’s “best interest”) “would not have protected any children,” according to Schlafly, who perceives the underlying logic and likely consequences far more clearly than most conservatives:
The primary purpose was to let lesbians interfere with natural parents and wipe out the rights of fathers. A divorced mom could get a lesbian spouse, and soon the dad is just one of three or four parents under the law. … Lesbian marriage is all about forcing kids to grow up without their fathers. They talk about equality and rights, but they are dead set against equalizing moms and dads in family law, and dead set against the rights of kids to have fathers.[13]
As Schlafly indicates, the main beneficiaries are lesbian couples – or more precisely single mothers who marry (regardless of their “sexual orientation” or any sexual intimacy) for the benefits they can acquire. (I will return to this point.)
Homosexual parenting marginalizes biological fathers (and some mothers too) still further from their children, since obviously at least some homosexual “parents” must acquire their children from someone else, and most come from fathers whose children become available through heterosexual divorce or cohabitation (as we shall see).
3. THE MYOPIA OF THE PRO-MARRIAGE CAMPAIGN
But if there are implications that the opponents of marriage do not wish to acknowledge, there are also much larger implications that the friends of marriage also have trouble facing. The first is that same-sex marriage is not the most serious or important threat to marriage and homosexuals did not destroy marriage. The demand for same-sex marriage is a symptom, not a cause, of the deterioration of marriage. By far the most direct threat to the family is heterosexual divorce. As Mike McManus of Marriage Savers writes, “Divorce is a far more grievous blow to marriage than today’s challenge by gays.”[14] Albert Mohler, a leading Baptist intellectual, has written likewise, as have others.
This is one reason why same-sex marriage cannot be prevented, and true marriage cannot be preserved, without squarely confronting issue like divorce, especially involuntary divorce. But there are other reasons. One is that same-sex marriage itself has arisen only because of divorce. Same-sex marriage it would never have even been put on the agenda if marriage had not already been debased by heterosexuals. “The weakening of marriage has been heterosexuals’ doing, not gays’, for it is their infidelity, divorce rates, and single-parent families that have wrought social damage,” observes the Economist.[15] Gallagher dismisses this argument as a “lawyer’s trick,”[16] but it is a powerful and legitimate argument. “The problem today is not gay couples wanting to get married,” writes Jonathan Rauch. “The threat to marriage is straight couples not wanting to get married or straight couples not staying married.”[17] While these advocates conveniently neglect to mention that this “social damage” has been wrought by their own feminist allies, who devised the new divorce laws and continue to encourage unwed motherhood before pushing on to advocate same-sex marriage, traditionalists’ attempts to take the moral high ground have clearly been seriously undermined by their inability to answer this point effectively. “People who won’t censure divorce carry no special weight as defenders of marriage,” writes columnist Froma Harrop. “Moral authority doesn’t come cheap.”[18] Voices like that of McManus are ignored by the media and drowned out by the soundbites of high-profile media figures.
Though scholars advocating same-sex marriage have exploited the myopia and neglect of the family groups,[19] its implications cut both ways. For the corollary to this logic is that the push for same-sex marriage is entirely a symptom of how debased marriage has already become for other reasons and would not have arisen otherwise. "Commentators miss the point when they oppose homosexual marriage on the grounds that it would undermine traditional understandings of marriage," writes Bryce Christensen. "It is only because traditional understandings of marriage have already been severely undermined that homosexuals are now laying claim to it."[20] Though gay activists cite their very desire to marry as evidence that their sexuality is not inherently promiscuous, they also acknowledge that that desire arises only by the promiscuity permitted in today’s marriage terms. "The world of no-strings heterosexual hookups and 50 percent divorce rates preceded gay marriage," Andrew Sullivan points out. "All homosexuals are saying…is that, under the current definition, there's no reason to exclude us. If you want to return straight marriage to the 1950s, go ahead. But until you do, the exclusion of gays is simply an anomaly – and a denial of basic civil equality." Homosexuals are correct that it was not they but heterosexuals who first devalued marriage, but they then use that fact to rationalize devaluing it further. Feminist Stephanie Coontz notes that gays are attracted to marriage only in the form adulterated by heterosexual divorce: “Gays and lesbians simply looked at the revolution heterosexuals had wrought and noticed that, with its new norms, marriage could work for them, too.”[21][†]
There is thus some myopia on both sides. The difference is that the radicals understand the logic and press it with a single-minded determination that the conservatives fail to understand and that leaves them nonplussed.
4. THE ROLE OF DIVORCE
Indeed, conservatives have seriously misunderstood the significance of the divorce revolution. While they lament mass divorce, they refuse to confront its politics. Gallagher attributed this silence to "political cowardice": "Opposing gay marriage or gays in the military is for Republicans an easy, juicy, risk-free issue,” she wrote in 1996. “The message [is] that at all costs we should keep divorce off the political agenda.” No American politician of national stature has seriously challenged unilateral divorce. “Democrats did not want to anger their large constituency among women who saw easy divorce as a hard-won freedom and prerogative,” writes Barbara Dafoe Whitehead. “Republicans did not want to alienate their upscale constituents or their libertarian wing, both of whom tended to favor easy divorce, nor did they want to call attention to the divorces among their own leadership.”[22] In his famous denunciation of single parenthood, Vice President Dan Quayle was careful to make clear, “I am not talking about a situation where there is a divorce.”[23] The exception proves the rule. When the late Pope John Paul II spoke out forcefully against divorce, he was viciously attacked from the right as well as the left.[24] A scholarly article in the Political Science Quarterly is devoted entirely to the fact, at which the author expresses astonishment, that self-described “pro-family” Christian groups conspicuously devote zero effort to reforming divorce laws.[25]
As if to prove the point, one satirist even started a petition to ban divorce, playing on the “hypocrisy” of family defenders who refuse to confront it. Gay marriage advocates exploited the polemical value of the petition (but significantly, refused to endorse it), while the few embattled groups with the boldness to challenge involuntary divorce openly responded by trying to take it seriously: "It’s a worthwhile conversation to have."[26] Yet most marriage and family defenders, at whom the satire was of course directed, passed up the opportunity to take the moral high ground and turn the tables on their critics, so once again they were humiliated and indeed made to look like hypocrites.
To the extent that conservatives have addressed divorce at all, they tend to lament and bemoan, and to credulously parrot feminist clichés that divorce is perpetrated by philandering and “abusive” men seeking “trophy wives” and “pedophile” fathers.[27] To devise public policy by punishing straw men is folly on a grand scale.
While examples can be found of anything, no evidence whatever suggests that the divorce and fatherlessness epidemics are driven by fathers willfully abandoning their children. Quite the opposite. From the start, divorce has been the foremost weapon in the feminist war against “patriarchy” – that is, fatherhood.
Just as marriage creates fatherhood, so divorce today should be understood as a system for destroying it. Modern divorce laws did not arrive from nowhere; they were devised by feminist lawyers as long ago as the 1940s, when the National Association of Women Lawyers began drafting the “no-fault” divorce laws that brought the gender war into every household in the Western world. It is no accident that divorce court has become largely a method for plundering and criminalizing fathers. In divorce court, fathers are routinely and en masse separated from their children without any reason required, looted for everything they possess, and jailed without trial. Not only are our prisons filled with fatherless children; our jails are filled with childless fathers – men never convicted of any crime but criminalized by divorce proceedings that are, legally speaking, literally “no fault” of their own.[28]
Here yet another reason why divorce has destroyed marriage as an institution. With such a regime arrayed against them, men are increasingly reluctant to marry and start families. In Men on Strike, Helen Smith shows very clearly that men have already launched a de facto marriage “strike,” refusing to marry or procreate, knowing the legal consequences they face.[29] No amount of scolding by armchair moralists who blithely preach the virtues of marriage – but do not have to live with the consequences – is going to persuade men into marriage that can easily mean loss of any children they produce, expropriation of their all their possessions, homelessness, and summary incarceration.
Yet far from confronting this, the same moralizing conservatives that refuse to challenge no-fault divorce credulously endorse feminist measures that are advertised to punish allegedly misbehaving fathers but which are in reality tools and incentives to facilitate more divorce and fatherlessness: dishonest measures to punish “domestic violence” and “child abuse” and a child support gendarmerie by which “a father is forced to finance the filching of his own children”[30]
and that makes unilateral and involuntary divorce very profitable for not only divorce practitioners but also mothers, with a tax-free windfall collected from fathers at gunpoint.
Further, the authoritarian government machinery used to enforce divorce rationalizes not only same-sex marriage, but whatever repressive police measures may be invoked to enforce it. Feminist political scientist Jyl Josephson revealingly pushes the ideological envelope to justify the increased state control over private life that same-sex marriage necessarily entails. Having blamed marriage deterioration (accurately) on heterosexual divorce, she then invokes the divorce machinery’s most authoritarian features as precedents to rationalize marshalling state power to undermine it further through same-sex marriage. “The state-created institution of marriage has historically been altered...to serve new or newly recognized state interests,” she argues, citing the most intrusive and invasive policy innovations introduced by divorce operatives: “no-fault divorce” and “heightened enforcement of child support.”[31] Having already mobilized a family gendarmerie with the power to dissolve the marriages and households of legally innocent people, take away their children, confiscate their property and wages, forcibly remove them from their homes, and incarcerate them without trial, assigning those same police to stop the mouths of those standing in the way of same-sex marriage is comparatively easy to justify.
Indeed, the nebulous but authoritarian legal framework created around divorce has also served as the model for many subsequent measures that are not only destructive of the family but also used to criminalize parents generally and Christians. The Convention on the Rights of the Child borrows from Anglo-American divorce law concepts like “the best interest of the child” to rationalize seizing control of children whose parents have committed no legally recognized transgression. Divorce law also rationalizes curtailing the freedoms of private persons who are minding their own business. The proposed Equal Treatment Directive, now pending in the European Union, would allow ostensibly “civil” suits against private individuals who “discriminate” against homosexuals simply by expressing their religious convictions about sexual morality. As with no-fault divorce, a suit may proceed simply because the accuser is “offended,” even if the accused committed no recognized legal infraction. In both instances the parallels with divorce proceedings are striking:
All this was first formulated in divorce law by feminists for use against fathers and men, while Christians (who once claimed authority over marriage and in whose churches the marriages often took place) looked the other way. Now the same methods are being used by homosexualists to punish and criminalize Christians and others.[32]
This is yet another demonstration of why same-sex marriage emerged directly from the divorce machinery. But there are more. Just as the divorce revolution led directly to same-sex marriage, so the closely connected child abuse machinery now allows same-sex couples effectively to confiscate the children of heterosexuals.
Most critiques of homosexual parenting have focused on the therapeutic question of whether it is developmentally healthy for children to be raised by two homosexuals.[33] So much has been written on this that there is no need to labor here a question that is essentially therapeutic rather than political, except to note that, by conducting the discussion on the therapists' terms, half the argument has been conceded, since subjective assessments of mental health can be debated ad infinitum.
What few have stopped to ask is the far more momentous political question of where homosexual "parents" get children in the first place. Here the discussion does not require esoteric child-development theories or psychological jargon from academic "experts." It can readily be understood by any parent who has been interrogated by social workers after a playground injury or one who has gone through divorce court. The answer is that homosexuals get other people’s children, and they get them from the same courts and social service bureaucracies that – operated by their feminist allies – are confiscating them from their real fathers and sometimes mothers, whose marriages still other feminist operatives in the divorce system are dissolving without any grounds. While attention has focused on sperm donors and surrogate mothers, thus far most of the children sought by aspiring homosexual parents are existing children whose ties to one or both of their real parents have been severed. Most often, this happens through divorce or cohabitation.[34]
The question then arises whether the original parent or parents ever agreed to part with their children or committed some offense to warrant forcible separation. Current law governing divorce and child custody renders the answer to this question, “not necessarily.” The explosion of foster care and the assumed but unexamined need to find permanent homes for allegedly abused children has provided perhaps the strongest argument in favor of gay marriage and gay parenting.[35] Yet the politics of child abuse and divorce indicate that this assumption is far from valid.
The government-generated child abuse panic, and the mushrooming foster care business which it feeds, have already allowed government social-work agencies to operate what amounts to a traffic in children.[36] Introducing same-sex marriage and adoption into this political dynamic will almost certainly increase the demand for children to adopt, thus intensifying pressure on social service agencies and biological parents to supply more children. Massachusetts feminist Senator Therese Murray, claiming that 40% of adoptions have gone to gay and lesbian couples, urges sympathy for "children who have been neglected, abandoned, abused by their own families."[37] But false and exaggerated abuse accusations against not only fathers but mothers too make it far from self-evident that these children are in fact victims of their own parents. It is far more likely that they are the victims of baby trafficking by feminist welfare agencies. This needs more research, but what seems inescapable is that the very issue of gay parenting has arisen as the direct and perhaps inevitable consequence once government officials got into the business –which began largely with divorce – of distributing other people's children.
So thoroughly has the therapeutic mentality displaced the ethic of family integrity and parental responsibility that the debate has become mired in what must inevitably be esoteric and insoluble psychological debates over the therapeutic value of homosexual childrearing rather than asking the more straightforward and urgent question of what right homosexuals (or feminists, or social workers, or judges, or anybody) have to take children away from legally unimpeachable natural parents in the first place, regardless of how good for them the therapists claim it is.
5. THE INTEREST AND POWER OF THE STATE
What is being overlooked throughout all this is the role of the state in marriage, which is increased dramatically by divorce and still further by same-sex marriage. The sexual radicals demand – in the words of a highly influential manifesto, “Beyond Same-Sex Marriage”[38] – “government recognition” and “legal recognition” for “a wide range of relationships, households, and families – regardless of kinship or conjugal status.” The state must recognize these various “relationships” as it now does marriage.
Why precisely? Obviously anyone may conduct a ceremony in a church or wherever they choose call it a wedding and then cohabit and call it marriage. Or they can call it something else.[‡] So what is all the fuss about? What is critical about state recognition? The answer is welfare benefits, which operate only in the absence of a father.
State recognition of marriage, we have suggested, traditionally exists to ensure that children have effective fathers by guaranteeing the father-child bond. This principle carries critical consequences for political economy. When fathers provide for their own children, each household is financially viable and self-sufficient and contributes to the general prosperity of society. The family can then exist as an economic unit in relative independence and autonomy from the state, because it is governed by parents, not functionaries. The state role is very minimal, limited to providing this guarantee.
Expanding state recognition to a variety of other family configurations inverts this principle diametrically. The state recognition demanded here for same-sex “families” and “a wide range of relationships” has precisely the opposite effect. Rather than permitting and requiring each father to provide for his own children and family, this allows any combination of individuals to form private conspiracies (“relationships, households, and families”) to loot the public purse and the rest of society by demanding welfare services and corresponding taxes on productive families to pay for them. This is clearly revealed by the additional demand for state recognition “for the children in all of those households and families” (emphasis added). Children provide the essential moral leverage (some say moral blackmail) to claim government assistance.
With the father present, only a minimum state role was necessary: to guarantee the father’s bond with his wife and children: marriage and paternity. But now an all-inclusive state is rationalized, because the state replaces the father as the provider for anyone who can manage to get included within a “marriage” or other “relationships, households, and families.”
This is why state recognition is being demanded for same-sex marriage and other configurations of “parenthood” and authority over children. The radicals demand not only “freedom from state regulation of our sexual lives and gender choices, identities and expression,” which of course was granted long ago. But further, the state (by taxing the rest of the population) must support these unproductive and dependent “households”: “access for all to vital government support programs, including but not limited to: affordable and adequate health care, affordable housing, a secure and enhanced Social Security system, genuine disaster recovery assistance, welfare for the poor,” etc.
In other words, self-sufficient and prosperous two-parent families will be plundered with taxation to finance dysfunctional, government-dependent, and fatherless households. Given that taxation is collected through the penal system and ultimately at gunpoint, this effectively enslaves the sexually responsible to the sexually liberated. The model for this slavery is child-support enforcement, which already enslaves men to support households from which they are excluded and where they cannot serve as true fathers. Child support enforcement originated in the child welfare machinery (as a mechanism for reimbursing the state for welfare payments) and then expanded to the middle class to become a direct subsidy and windfall for divorcing mothers.[39] This subterfuge was rationalized by the falsehood, again, that child support was necessary because fathers were “abandoning” their children. Two-parent families will be looted through the taxation and welfare much the way exiled fathers are already being looted through divorce and child support.
Conservative groups raise the sensational specter of two (or more) homosexual men raising children. But this is not likely to be the most likely outcome; very few homosexuals (themselves a tiny part of the population) really want to marry, and most of the men do not want to raise small children (though adolescents may be another matter). As Schlafly indicates, the main beneficiaries will be the single mothers who started the entire process in the first place, because they can marry one another and acquire multiple state benefits. They can derive a variety of tax-free income streams from the fathers (child support) and taxpayers (welfare). “This is a significant advantage compelling women who would otherwise become (or are) single mothers to choose to marry a woman instead of a man,” writes David Usher of the Center for Marriage Policy:
They can combine incomes, double-up on tax-free child support and welfare benefits, decrease costs, and double the human resources available to raise children and run their household. They are sexually liberated, with boyfriends often cohabiting with them to provide additional undeclared income and human resources….
Same-sex marriage, Usher continues, allows single mothers to establish “sub-rosa polyandrous marriage as a common legal institution with fathers and taxpayers as peripheral servants.”[40]
This also shows very clearly that the government – using the divorce machinery – is already looting not only fathers but the entire wealth of the civilization that has been built up over centuries by productive families with fathers. If protecting the father-child bond was the main role of the state, that role fell foremost to the courts who served as the guardians of the society’s wealth. Today those same courts themselves stand the forefront of the kleptocracy. They are plundering the wealth of the families with which they were entrusted, using the oxymoron of “no-fault” justice to rationalize their injustice. Those same courts now sit atop a huge clientage network that they have created for themselves in the welfare system – machinery they can expand further by legalizing (and they have been the foremost instrument for legalizing) same-sex marriage.[41]
The welfare state also explains the huge political appeal of same-sex marriage to parties of the right as well as the left (both of which are dominated by legal practitioners) and why it has been so effective in neutralizing opposition and enacted so quickly. Homosexuals constitute a relatively small and fixed proportion of the voting population. But welfare officials and their clients among unmarried women and single mothers are a large and growing voting block and a well-organized political lobby that vote overwhelmingly for the left. The Obama administration has been a bonanza for single mothers, and it has turned the welfare state into a political machine – a kind of nomenklatura -- for the Democratic Party. Likewise, European parties and governments that still nominally describe themselves as “socialist” and “communist” now mostly cater to, and are increasingly led by, feminist welfare officials and their clients. Even parties and politicians describing themselves as “conservative” and even those labeled “far right” are part of this trend. Theresa May, who pushed same-sex marriage through the British Parliament and who came to power in a coup,[42] is now the most prominent example. But the Christian Democrats, who created and dominate the European Union are similar. None of these parties, left or right, can allow such an electoral windfall as same-sex marriage to be lost.
This is why the economic crisis of 2008, which is widely acknowledged to have originated in the welfare state, has no solution without confronting it. Long before, the crisis of marriage started with the welfare state’s assumption of control over private family life. Whenever the state gives benefits, it simultaneously assumes control over the recipients of its generosity. Today we are seeing the bankruptcy of the most prosperous societies in human history, while social spending continues to increase with no end in sight. The welfare state also acts as the magnet that attracts impoverished migrants from neighboring regions and creates matriarchal ghettoes of crime, drugs, and nowadays, terrorism.
6. WHAT IS THE SOLUTION (AND WHAT IS NOT)?
The legal measures required to preserve marriage and bring the entire Sexual Revolution under control are actually quite simple. They consist mostly of enforcing the traditional mechanisms that are in place and that we have allowed to fall into abeyance by faintheartedness, rather than legal innovations of unproven efficacy.
It is now very clear – for the reasons given and for other reasons – that explicit prohibitions on same-sex marriage, even where it is still politically possible to enact them, are weak and cannot have any lasting effect. Even with statutory or constitutional provisions limiting marriage to the relationship between one man and one woman, as Robert Seidenberg writes in the Washington Times, "Some judge somewhere would soon discover a novel meaning for 'man' or 'woman' or 'between' or 'relationship' or any of the other dozen words that might appear."[43]
This is already happening with the “transgender” movement. “The practical effect…will inevitably be same-sex ‘marriage,’” Melanie Phillips predicted some years ago. “Marriage as a union between a man and a woman will be destroyed, because ‘man’ and ‘woman’ will no longer mean anything other than whether someone feels like a man or a woman. As a result, priests may unwittingly marry people of the same sex.”[44]
Yet the necessary legal measures required to preserve marriage and bring the entire Sexual Revolution under control are already in place. While it certainly will not be politically easy see them enforced, they are legally straightforward and consist of what most people assume to be law at present and are shocked to discover is no longer protected by the law. Basically it consists of two measures that cost nothing financially:
1. First, marriage must be restored to a legally enforceable contract.
2. Second, the parent-child bond must be legally inviolable.
First, most constitutions and all stable legal systems provide that legal contracts must be honored and enforced. “No-fault” divorce obviously violates this principle directly. The very concept of “no-fault” justice is a contradiction in terms and a formula for legal chaos. It is not surprising that it is not only wreaking havoc in our families and society; it is also poisoning our judiciaries with legal nihilism and turning our courts into patronage machines that dispense not justice but injustice.
The marriage contract must be legally enforceable, like any other. There must be clear and recognized legal grounds for determining when the marriage agreement has been violated. A spouse that violates the marriage agreement must assume the consequences, and an innocent spouse must be left in peace, free from state interference in his or her private life. A spouse who wishes to be released from the agreement through divorce without having recognized legal grounds against the other must likewise bear the burden of the consequences, with the innocent spouse left in peace, with his or her children, home, and property, and without any government interference in his or her private life. An innocent spouse has no financial obligations toward a guilty spouse. Alimony and child support must be limited to spouses that violate the marriage agreement or voluntary agree to abrogate it. This is the law with all other contracts, and it must be the law for marriage.
This really already includes point #2: The parent-child bond must be inviolable, absent some recognized and clearly established wrongdoing by the parents. The must be the case for both married and divorced parents. Married parents, including parents who are legally innocent of recognized marital wrongdoing, must be presumed to act in the best interest of their own children, who cannot be removed from the care, custody, and companionship without criminal conviction of child abuse according to due process of law. Divorced parents must be treated as above: An innocent spouse must retain the presumption that he or she acts in the best interest of his or her own children. A spouse that violates the marriage contract or seeks to abrogate it unilaterally without grounds cannot be presumed to act in the best interest of his or her children and must depart from the marriage alone.
Protecting the rights of parents – married parents, which means fathers defined by marriage – to raise their own children would weaken most government interference in the family. Especially if worded so as to protect the bond between children and their married fathers, such a measure would undermine both the divorce regime and same-sex marriage by establishing marriage as a permanent contract conferring parental rights that must be respected by the state. Within the bonds of marriage, it would preserve the rights of fathers, parents of both genders, and spouses generally, and it would render same-sex marriage largely pointless. Marriages producing children (which are the most important ones) would be effectively indissoluble, rather than a succession of boyfriends, and there would be few fatherless children for homosexuals to adopt. Men would come to understand that to have full rights as fathers and a legally guaranteed bond with their children they must marry before conceiving children, and they would thus have an interest in ensuring the institution’s enforcement and permanence.
7. A LARGER COALITION
Though legally clear and simple, this is not a small undertaking. It would mean taking on the radical sexual establishment in its entirety – not only homosexualists but their allies among feminists, bar associations, family courts, psychotherapists, social workers, and public schools. It would raise the stakes significantly – or rather it would highlight how critically high the stakes are already.
But the benefits would also be huge. It would focus public attention on the interconnectedness of these threats to the family and freedom and bring the entire radical agenda into public view in its full destructiveness, rather than allowing its various cohorts to pick off marriage, the family, parental authority, fathers, Christians, and taxpayers, one group at a time. Most important politically, it would foster a coalition of parents, taxpayers, religious believers, and other citizens – all with a vested personal interest in preserving both the integrity of marriage and with it a solvent, prosperous, and free society.
In the long run, we must also address the perennial problem of the welfare state. Already there is no shortage of people arguing from the supply side that the welfare state is financially dysfunctional and that it is bankrupting our society. What they lack is these arguments from the demand side: It is also socially destructive. We are in a vicious circle: bankrupting ourselves to pay for our own social destruction. This supplies those arguments, and together they are conclusive.
We have no choice but to accept this challenge. We have essentially lost the battle for same-sex marriage, and there is much, much more that we still stand to lose.
Politically, where do our resources and our strength come from, given that – by my own accounting – we have already lost so decisively?
Our strength for this change of approach and direction come from Central and Eastern Europe – and through that region, eventually, from the global South. North America and Western Europe are essentially lost. But East-Central Europe is not only not lost; it is also the redoubt from which we can begin the counter-offensive to redeem the West. But before that can happen, it is essential that we understand why we have lost so badly so far. Otherwise, our losses simply continue, and we lose it all.
[*] The author is Professor of Government at Patrick Henry College. His book, The New Politics of Sex: The Sexual Revolution and Civil Liberty, is forthcoming from Wipf and Stock. A version of this paper was read at the Ordo Iuris conference on Marriage, its Identity, and Legal Recognition, held at Warsaw University, 29-30 September 2016.
[†] This hardly constitutes a commitment to the health of the institution. "I'd be for marriage if I thought gay people would challenge and change the institution and not buy into the traditional meaning of `till death do us part' and monogamy forever,” says Mitchel Raphael, editor of Fab, a popular gay magazine in Toronto. Numerous such admissions could be quoted:
It’s a no-brainer that [homosexual activists] should have the right to marry, but I also think equally that it’s a no-brainer that the institution of marriage should not exist.... Fighting for gay marriage generally involves lying about what we are going to do with marriage when we get there—because we lie that the institution of marriage is not going to change, and that is a lie. The institution of marriage is going to change, and it should change.
“Free to Marry, Canada's Gays Say, 'Do I?',” New York Times, 31 August 2003, http://www.nytimes.com/2003/08/31/international/americas/31CANA.html; Lesbian journalist Masha Gessen, quoted in Schlafly, Who Killed, 58.
[‡] Given the authoritarianism of the divorce machinery, the “freedom” that homosexuals hope to derive from having their marriages recognized by the state may come back to haunt them, since it opens their private lives to the increasingly conspicuous tribulations of family law proceedings – by far the most invasive sector of not only the law but government power overall. Here too the full implications are seen not in marriage itself but in its official dissolution through divorce. An early bill legalizing same-sex marriage was nicknamed the “gay divorce law,” because it would force individuals simply wishing to part company into court proceedings and to spend money on lawyers. (Gallagher, “(How) Will Gay Marriage Weaken Marriage,” 41–42.) Previously, in the eyes of the law, such a couple was simply two individuals in a dwelling, whose sexual “intimacy” was a matter of official indifference. With marriage or civil unions, they become spouses or “intimate partners” into whose private lives the state may claim an interest to insert its coercive power to restrict and punish at the mere invitation of either, rationalized by any grievance or none.
Why has this not been raised for debate? Because it clearly demonstrates why homosexuals really have no interest in marriage and why very few choose to avail themselves of the option. Same-sex marriage has not arisen to make life better for homosexuals. It is one more ideological weapon whose purpose is to destroy “patriarchy” and criminalize the innocent – a process already well underway with the criminalization of fathers.
[1] S. Baskerville, “Divorced from Reality,” The American Conservative, 1 December 2010.
[2] S. Girgis et al., “What Is Marriage?” Harvard Journal of Law and Public Policy 2010 (1), pp. 245-287.
[3] A. Carlson, “The End of Marriage,” Touchstone, September 2006.
[4] Cp. L. Wardle, “The Potential Impact of Homosexual Parenting on Children,” University of Illinois Law Review (1997), part IV.
[5] M. Mead, Male and Female: A Study of the Sexes in a Changing World, Dell: New York 1969, p. 198.
[6] J. Josephson, “Citizenship, Same-Sex Marriage, and Feminist Critiques of Marriage,” Perspectives on Politics 2005 (2), p. 275. See also P. Drexler, Raising Boys Without Men, Rodale: n.p., 2005, p. 133. Drexler goes on to describe how the single mothers engineer the genetic composition of their children according to what one calls “the plan”: choosing the sperm donor according to his physical characteristics to create the mail order child of their dreams.
[7] L. Kass, “The End of Courtship,” The Public Interest 1997 (126).
[8] T. Hobbes, Leviathan, part II, chapter 20, Penguin: Harmondsworth 1982, p. 254 (emphasis added).
[9] F. Pollack and F.W. Maitland, The History of English Law, 2d edn., Law Book Exchange: Clark, New Jersey 1968, 398-399. For the feminist manipulation of this principle, see D. O’Leary, The Gender Agenda, Vital Issues: Lafayette, Louisiana 1997, p. 32.
[10] The literature is surveyed in S. Baskerville, Taken Into Custody: The War Against Fathers, Marriage, and the Family, Cumberland House: Nashville, 2007, introduction and chapter 1.
[11] P. Schlafly, Who Killed the American Family, WND: Washington 2014, p. 196.
[12] M. Gallagher, “(How) Will Gay Marriage Weaken Marriage as a Social Institution,” University of St. Thomas Law Journal 2004 (1), pp. 56-57.
[13] Schlafly, Who Killed, pp. 72-73.
[14] M. McManus, “Is Gay Marriage Next?” 12 July 2003, http://www.marriagesavers.org/Columns/C1141.htm.
[16] M. Gallagher, “The Divorce Thing,” National Review Online, 13 August 2003, http://www.nationalreview.com/comment/ comment-gallagher081303.asp.
[19] F. Liu and S. Macedo, “The Federal Marriage Amendment and the Strange Evolution of the Conservative Case Against Gay Marriage,” PS: Political Science and Politics 2005 (2), pp. 212-213.
[20] B. Christensen, "Why Homosexuals Want What Marriage Has Now Become," The Family in America 2004 (4).
[21] A. Sullivan, "Unveiled: The Case Against Same-Sex Marriage Crumbles,” New Republic, 13 August 2001 (emphasis added); S. Coontz, “The Heterosexual Revolution,” New York Times, 5 July 2005 (emphases added).
[22] B.D. Whitehead, The Divorce Culture, Vintage: New York 1998, p. 7.
[23] M. Gallagher, The Abolition of Marriage, Regnery: Washington 1996, p. 245.
[24] T. Varadarajan, "Clash With the Titans," Wall Street Journal, online edition, 30 January 2002, http://opinionjournal.com/columnists/tvaradarajan/?id=95001795.
[25] M.H. Smith, “Religion, Divorce, and the Missing Culture War in America,” Political Science Quarterly 2010 (1).
[26]
“California Man Looks to Ban Divorce, Ruffle Conservative Feathers,” Personal
Liberty Digest, 30 December 2009, http://www.personalliberty.com/news/california-man-looks-to-ban-divorce-ruffle-conservative-feathers-19490845/.
[27] James Q. Wilson: “If divorce becomes easier, a lot of prosperous men will leave their spouses and marry a trophy wife.” The Marriage Problem, HarperCollins: New York 2002, p. 15. Wilson cites not evidence for this. Such, from one of America’s most influential intellectuals, is the state of conservative scholarship on divorce.
[28] Baskerville, Taken Into Custody.
[29] H. Smith, Men on Strike: Why Men Are Boycotting Marriage, Fatherhood, and the American Dream – and Why It Matters, Encounter: New York 2013.
[30] J.H. Abraham, From Courtship to Courtroom, Bloch: New York 1999, p. 151.
[31] Josephson, “Citizenship,” 271 (emphasis added).
[32] S. Baskerville, “Family Takeover,” Touchstone, January-February 2011.
[33] E. and A. Carlson, “A Primer on the 'Gay Marriage' Debate,” The Family in America 2003 (8).
[34] “The Real Danger of Same-Sex Marriage,” The Family in America 2006 (5-6).
[35] See Lethimstay.com, ACLU Lesbian and Gay Rights Project, http://www.lethimstay.com/bigpicture_numbers.html, accessed 27 October 2005.
[36] For the latest of many exposes, see Stephen Krason, “The Mondale Act and Its Aftermath: An Overview of Forty Years of American Law, Public Policy, and Governmental Response to Child Abuse and Neglect,” in: Child Abuse, Family Rights, and the Child Protective System: A Critical Analysis from Law, Ethics, and Catholic Social Teaching, Scarecrow Press: Lanham, Maryland, 2013, p. 41.
[37] "The Debate on Gay Marriage, Pro and Con," Boston Globe online edition, 12 March 2004 http://www.boston.com/news/specials/gay_marriage/articles/2004/03/12/the_debate_on_gay_marriage_pro_and_con/.
[38] “Beyond Same-Sex Marriage” was issued by prominent “lesbian, gay, bisexual, and transgender (LGBT), and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers.” Quoted in Stanley Kurtz, “The Confession,” National Review Online, 31 October 2006, http://www.nationalreview.com/articles/219092/confession/stanley-kurtz.
[39] Stephen Baskerville, “From Welfare State to Police State,” The Independent Review 2008 (3).
[40] David Usher, “Marriage: America’s Greatest Fiscal Issue,” website of the Center for Marriage Policy: http://marriagepolicy.org/2011/09/marriage-americas-greatest-fiscal-issue/ (n.d.).
[41] Baskerville, Taken Into Custody.
[42] Christopher Booker, “Theresa May Used Europe to Push through Gay Marriage,” Daily Telegraph, 16 July 2016; Stephen Baskerville, “Brexit and the Eighteenth Brumaire of Theresa May, Providence, 28 July 2016.
[43] Robert Seidenberg, “Redefine Debate, not Marriage, Washington Times, 13 March 2004,
http://www.washingtontimes.com/news/2004/mar/13/20040313-103736-7635r/.
[44] Melanie Phillips, The Sexual Identity Free-for-All, Daily Mail, 8 March 2004, http://www.melaniephillips.com/the-sexual-identity-free-for-all.