What Ted Olson Doesn’t Get About Marriage

During his oral argument before the Supreme Court, Ted Olson observed that marriage is a “fundamental right.” This is a confused statement.

It’s true that marriage is very important, fundamental, in fact. It’s part of the DNA of society, and for most people the path in life most likely to bring stability and happiness. And so government should not have an unlimited capacity to muck around with marriage. It’s too important for politics, too fundamental for us to turn it into a policy that might or might not be implemented.

In other words, people have a “right” to live in a society in which marriage is a widely accessible, stable, functional institution.

But that’s not really what Olson and other proponents of “marriage equality” mean. They’re saying it’s more individualistic: each individual has a “right” to whatever definition of marriage suits him, which isn’t the same as our right to marriage as a stable, functional institution, and may in fact be at odds with it. That’s because to secure Olson’s sense of “fundamental right,” government must in fact muck around with marriage to make it plastic enough to guarantee that everyone can have the kind of marriage that suits him. In so doing, marriage changes. It’s no longer a pre-political institution the state protects and advances so as to secure our fundamental right to the possibility of marriage as a stable, functional institution. Instead marriage becomes a creature of politics, which means vulnerable to definition and re-definition (and therefore instability) as political circumstances vary.

It’s the possibility of this instability that motivated Justice Sotomayor to question Olson: Doesn’t this notion of marriage as a “fundamental right” make it pretty much impossible for the state to regulate marriage. Doesn’t a mother have a “fundamental right” to marry one of her children? She didn’t mention polygamy, but she could have.

Olson denied that his notion of marriage as a “fundamental right” led to such conclusions. The state rightly prevents exploitation, abuse, patriarchy, and so forth. Perhaps, but it’s important to see that these are political limits, by which I mean subject to the ebb and flow of political concern about such matters, which is sure to be fluid. Right now we think polygamy involves the exploitation of women. Tomorrow? And what about a bisexual woman who wished to form an intimate, socially affirmed bond between both a man and a woman?

I don’t think we’re on the brink of affirming such a possibility, or others. Right now our political culture wants to affirm “straight” homosexuality and slot it into traditional views of marriage: monogamy, permanence, domestic partnership, childrearing. In that sense Olson is right. But we need to see the transformation for what it is. In the past our political culture took the institution of marriage as a given, and legislated for its sake, thus making more secure the good of marriage for society—making more secure our “fundamental right” to marriage as a stable institution. Now Olson sees the desires of individuals as a given and we have a right to the sort of marriage that suits those desires. (Why he limits the fundamental rights to “straight” gays and lesbians rather than less bourgeois ones is hard for me to understand other than politically, by which I mean as part of the elite consensus that wants to think this way.) Therefore marriage needs to be redefined.

Put differently: They’re desires that are stable, by his way of thinking (e.g., gays and lesbians are a “class” that for purposes of law must be taken as a given). On the other side marriage (and indeed all cultural norms concerning sexual behavior and identity) must be seen as fluid and changeable.

There’s a metaphysical purism here, one characteristic of theoretical liberalism. Only qualities adhering to individuals have standing before the law. Traditional institutions have none. In this case, marriage as such has no standing before the law.

What marriage  is  has no relevance for deciding whether or not a person’s “fundamental right” to marriage (as understood by Olson) has been violated. Olson can only adduce harms to other individuals (exploitation, abuse, patriarchy, etc.) as reasons to restrict our “fundamental right” to marriage. These harms are for judges and the political process to decide. Nothing about marriage as a traditional institution is relevant to these future decisions or processes. (Exploitation is exploitation, marriage or not, etc.) Marriage, therefore, becomes a political construct for the purpose of fulfilling the individual’s “fundamental right,” and that right can only be limited by determinations of what counts as sufficient harm to others. Marriage as a stable, functional institution is therefore at the whim of the political process that is forever deciding what counts as a harm sufficient to limit a right.

I beg your indulgence for what I fear is an overly abstract analysis. I’m trying to get to my conclusion: In an important sense, Olson’s fight for the “fundamental right” to marry whomever we choose without regard to what marriage  is  comes at the expense of our fundamental right to marriage as a stable, functional institution.

Let me give an analogy: Education is a fundamental right in much that same way that marriage is. We have a right to live in a society in which educational institutions are widely accessible, stable, and functional. There’s an individual dimension, to be sure. I should have access to educational institutions properly fitted to my aptitudes and goals. But it’s about more than the individual dimension. My fundamental right to educations is empty if I’m guaranteed access to dysfunctional schools that fail to provide a decent education. And so my “right to education” can readily serve as a reason for government to buttress, strengthen, and reform educational institutions, not in accord with me and my aptitudes and goals, but in objective terms, in terms of what education  is . New York City schools often fail educationally, which is to say that they fail to achieve the ends of education (reading, writing, and arithmetic), not that they fail to be accessible to all students irrespective of status.

What Olson is doing is akin to redefining the fundamental right to education in a way that makes no reference to what education  is . That would be disastrous, because it would force us to redefine education solely in terms of its accessibility. New York City College did just that in the late 1960s with an open admission policy. The result: instability, dysfunctionality. A just society has many features. Some have to do with individual rights. But features of a just society have to do with healthy institutions. A just society cannot guarantee educational opportunity solely by way of guaranteeing equal or free or open access—the aspects that have to to with individuals.

A just society must respect that nature of education and nurture the institutions that serve its ends.

The same hold for religion and religious institutions, community and communal organizations. The same holds for marriage.

It’s possible, I think, to affirm same-sex marriage in terms of what marriage is: domestic partnership, the context for disciplining our sexual desires to serve the higher end of a permanent bond, monogamy as an intrinsic good. That’s a truncated version of the traditional view, but it’s a view. But that’s not the way current campaign for “marriage equality,” and perhaps not surprisingly. Olson’s metaphysical purism—sexual desire as the ground of Being, as it were—is widespread, and may in fact be a fundamental, non-negotiable principle of the sexual revolution.