I remember Marcus Berquist once remarking that the problem with politics nowadays is that all the really important things have already been settled, and settled wrong. Given the developments of recent decades (and indeed centuries), there was nothing surprising about the United States Supreme Court’s decision on homosexual “marriage.” Viewed as a symptom of the general corruption of our time it is a sad thing. Viewed with a bit of detachment though, there is something comical about the court’s “finding” a right to this spectacularly irrational abomination in the terse, 18th century prose of the constitution that it has to pretend to interpret. Justice Scalia’s comparison of the opening line to a fortune cookie is even a bit unfair. Unfair, that is, to fortune cookies; they are not accustomed to apply their banalities to such extreme perversion.
One of the most laughable things about the decision is the clever-little-me-ish attempts by Justice Kennedy (who wrote it) to turn arguments against homosexual marriage around, and making them prove the opposite case. There is something richly comical about sanctimonious Geschwafel on the dignity of marriage being used in this case. Kennedy even attempts something like a natural law argument, appealing to natural inclination, and indeed even to the immutability of the petitioners’ nature: “their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” (Consider the contrast between Justice Kennedy’s concept of nature and that of Laudato Si’). He also invokes the principle that matrimonial society is in some sense prior to political society and its foundation. And this is the point that I want to consider a little more closely.
Kennedy appeals to ancient authorities to make the point:
Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” (p. 3)
Now, I think that there is definitely a sense in which Confucius and and Cicero are right, but what exactly does this mean? In his dissent, Justice Thomas also appeals to a sort of priority of marriage to political society, but he gives it a decidedly modern, Lockean interpretation that is presumably somewhat different from that of Confucius and Cicero. Thomas is objecting to the court’s argument that the denial of marriage is contrary to the liberty that the constitution seeks to protect. Thomas argues that the framers understood liberty in a negative, Lockean sense, as liberty from government interference in matters over which the people have not explicitly given authority to the government. But here, he continues, the government is not interfering in homosexuals’ ability to live together, make promises, etc. Such things, he argues, are pre-political, and do not require government solemnization:
At the founding, such conduct was understood to predate government, not to flow from it. As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.” Locke §77, at 39; see also J. Wilson, Lectures on Law, in 2 Collected Works of James Wilson 1068 (K. Hall and M. Hall eds. 2007) (concluding “that to the institution of marriage the true origin of society must be traced”). Petitioners misunderstand the institution of marriage when they say that it would “mean little” absent governmental recognition.
The idea here is the Enlightenment idea that society comes from the free association of individuals, who, on Locke’s account, give up only certain definite matters to the judgement of the society of which they are the cause. And further that the first society that they form is marriage, after which political societies are formed, so that the former cannot depend on the later. This might seem similar to Kennedy’s quotations from the ancients, but I think the meaning is actually quite different.
On the eve of the decision there was an exchange between C.C. Pecknold and Damon Linker in which the roles of Kennedy and Thomas were exactly reversed— with Pecknold citing the ancients’ understanding of the pre-political nature of matrimony to argue against homosexual marriage, and Linker citing the classical liberal view of Locke et al. to argue for the recognition of such “marriages.” This alignment makes more sense. Pecknold appealed to St. Thomas and Aristotle to show “that man is more inclined to conjugal union than political union,” that the conjugal union is in fact naturally necessary for the existence of political union, and that the state therefore “the state has a stake in recognizing and protecting the institution of marriage.” In his response Linker misunderstands Pecknold as having made a Lockean argument:
Liberal government is limited government — and government is limited by defining a pre-political sphere that the government isn’t permitted to enter or control. This is straight-ahead classical liberalism, and nearly all Americans affirm some version of it. We believe the government shouldn’t violate our rights to life, liberty, and the pursuit of happiness. This means, by extension, that our homes, bodies, property, and a wide range of our actions are off limits from government interference, unless it obtains a warrant from a judge, or the action transgresses a democratically enacted law or a regulation imposed by a democratically accountable executive-branch department or agency. The reason why the government is limited in this way is that these aspects of our lives come first. Not necessarily first in a temporal sense, but first in a conceptual sense. We accept the legitimacy of the government because it protects us and the lives we lead apart from the government. We create it, and not the other way around. That’s the sense in which our lives, liberty, and various pursuits are pre-political.
Linker’s idea of “pre-political” here is of the freely chosen actions and institutions that individuals have settled on, and which they haven’t handed over to the government by social contract. And from this it is easy for him to conclude: “same-sex marriage is every bit as pre-political as traditional marriage.”
That Linker reduces the pre-political to a matter of choice shows that he has followed liberal premises far down the path toward post-modern, Neo-Nietzschean nihilism. Classical liberalism still retained some vestiges of the normativity of nature, and saw the union of man and woman as natural. But the primacy given to individual choice can be radicalized to the position that everything is really arbitrary imposition of power, and appeals to reason and nature are just ideological mystifications that conceal the imposition of will. Linker might not be willing to take this position to its ultimate conclusions, but they are implied in his argument. In this case, though, he thinks that it is the cultural attitudes of ordinary Americans that are really doing the imposition rather than the Leviathan state, and so one ought really not to blame the court.
But Pecknold’s sense of “pre-political” was quite different. He was saying not that persons commit to marriage before they choose to associate politically, but rather that they are by nature ordered to matrimonial union, and that this union is a foundation of politics, such that political community cannot corrupt it without corrupting itself.
There is an apparent difficulty with such a position from the perspective of a thick Aristotelian-Thomistic notion of the primacy of the common good, and the dignity of politics as ordered to the highest natural good. Indeed, Aristotle seems to contradict it directly: “the state is by nature clearly prior to the family and to the individual, since the whole is of necessity prior to the part” (Politics, 1253a 19). So there seems to be an Aristotelian way of saying politique d’abord or even tout est politique. As Kevin Gallagher once argued, the traditional view of marriage as an indissoluble, exclusive union between man and woman is ordered to a political end, namely the complete human good that can only be achieved in a polity. And again:
For unlike the rest of the animals, man is political, and rational, and political in a rational way. That is, the arrangements of our common life are up to us to create, by acts of reason. As St. Thomas correctly tells us, natural law is when the reason by which we order our life participates in the eternal reason of God. […] Marriage is a form, originating in human reason, which we add, on account of various considerations, to the form of procreation we share with animals. Needless to say, these are good and wise considerations, but they arise from political considerations […]
Gallagher exaggerates slightly— to say that reason promulgates the natural law is not to say it creates it— but the basic point is sound: matrimonial society is ordered by the natural law, promulgated in the reason of virtuous persons, to the common good of political society.
But the solution to this apparent difficulty is in a rather humdrum distinction that Aristotle makes in the Categories between five senses of “prior” or “before.” The fourth sense of “prior” is prior in goodness or nobility, and because the common good of political society is a more perfect good than that of matrimonial society, the polity is prior to marriage in this fourth sense. But the second sense of “prior” is prior in being, as (to use Aristotle’s example) one is prior to two since if two exists one must exist also, but one can exist without two existing. It is in this sense that marriage and the family are prior to political community, since the political community is essentially a union of families.
The Josias has posted a number of essays that are helpful for explicating this point. The first was from Beatrice Freccia, and is worth quoting at length. I quote the following paragraphs slightly out of order:
The household can also be seen to contribute to the development of its members’ perfection in civic virtue—a particular sort of virtue with regard to one’s participation in the political life. One way in which the household can be seen to develop this particular virtue is with regard to the parents. If the end of the particular state that they live within is truly the good for man, they will of course desire to contribute to the perpetuation of that state, so that it may continue to accomplish its end. As such, they will bring forth offspring with an eye towards those children participating in the life of the state, and they will educate their children such that the children have a correct understanding of the regime and its aim.
The children are prepared for the life within the state not only by their parents’ instruction, but also by participating (both directly and through observation) in the types of political rule modeled in the relationships within the household. These help them not only to better understand the particular regime under which they live, but also political rule generally.
Finally, all of the freemen within the household (even those who are only properly freemen in potency, as are the children) are brought to a better understanding of the common life and end of the state by their experience of the common endeavor of the household. The household, as that which is better known to all of its members, provides a foundation for understanding the life of the freeman within the state, and as such, plays an ineffable role in the strength of the state as a whole. […]
The fact that the household cannot complete the process of perfection which it begins returns us to our earlier inquiry into the nature of the state’s priority to the household. Only the state, because it is self-sufficient and lacking in nothing, can secure man’s perfection. […]
It is […] the diversity of the contributions of its citizens that makes a polity self-sufficient. These diverse contributions are made possible primarily by the fact that the state consists of different classes of people, but also by the fact that the state is composed of a multitude of households, each of which will have a unique character (derived partly from the fact that it stems from the partnerships of unique individuals) even within a given class, and which will produce citizens with complementary perspectives and abilities. To eliminate the household is to destroy an aspect of the plurality of the state, and so also to destroy its self-sufficiency.
The same point is made by Henri Grenier, who argues that the family and the individual have ends that are by nature different from the end of the polity (since the polity has a unity of order, not of substance), but that these ends are subordinate to the end of the polity, since this is the final end of human life in the natural order. Thus he concludes:
The civil authority, or the State, as it is called, has no right to refuse recognition to the proper ends determined by nature for the individual person and for the family, nor has it any right to limit them. On the contrary, the civil authority is in duty bound to aid the individual person and the family in the attainment of their proper ends, for these ends, as directed to the common good of society, lead to that temporal happiness which is the end of civil society.
Similarly, Charles De Koninck argues that since the family is ordered to educating children to be members of the state, the state cannot supplant the family without destroying itself:
When the State supplants either the family or the individual citizen, it has thereby destroyed itself as a civil society, for the latter is an association of citizens, and the citizen is by nature a free man. Again, it is the citizen that is attacked when the State assumes the authority of the father, since only the family whose rights are protected and whose needs are met with in conformity with its own nature, can foster the child toward the status of free man.
Pecknold is thus right, that an attempt by the state to put artificial and unnatural unions on the same level as the family is a sign that the state is turning into an all-devouring Leviathan. Such unions might indeed, as Linker argues, have been first conceived of by private citizens, but the state’s solemnizing them as “marriages” denies the priority in being of natural matrimonial societies to political society. As Aelianus of Laodicea put it, with his characteristic rhetorical flair:
The Spirit of the Age (aka the Prince of this World) does not like marriage it being the symbol of everything he seeks to destroy and of his greatest defeat. He has invented his own version ‘Gay marriage’ and his alternative to the family: the Leviathan State.