Personal Freedom Without Political Liberty

Sometimes events conspire. In mid-May, the California Supreme Court decided that anything less than marriage for same-sex partners leads to a fundamental discrimination against homosexuals. A week or so later, the Texas courts opined that state officials who removed children from a polygamist Mormon sect may have been motivated by an illegitimate religious prejudice.

There is a great deal more political water that needs to go under the bridges in California and Texas. There will be a referendum on gay marriage in California in November. The Texas officials doubtless have other legal tools for harassing the unfortunate folks at Yearning for Zion Ranch. And I’m sure controversy over marriage will join other cultural issues as an important factor in the presidential election this fall.

But we needn’t speculate about electoral politics in order to read the signs of the times. We’re rapidly reaching the point where the spirit of postmodern, nonjudgmental moral minimalism now permits a man to have many wives—or a husband—if that’s what he prefers. Polling shows that among younger Americans the Yuck Factor has succumbed to the Seinfeld Sentiment: “Not that there’s anything wrong with that!”

At first glance, the Seinfeld Sentiment seems generous. Shouldn’t we allow for what John Stuart Mill called “experiments in living”? Isn’t an accommodation of differences in belief and behavior the essence of the American experiment: life, liberty, and the pursuit of happiness? If Jim wants to pledge himself to John—or to Jane, Jill, and Jennifer—then why should we stand in the way?

There are many ways to answer these questions, but Douglas Farrow’s provocatively titled book Nation of Bastards: Essays on the End of Marriage provides an important insight that we do well to ponder. He sets aside the moral arguments against homosexual acts and concentrates on the lasting implications of gay marriage for our political culture.

A Canadian active in the recent failed efforts to block gay marriage there, Farrow looks at the legislation and its enabling amendments that made gay marriage possible in Canada in 2005. He finds an important shift. Where old laws spoke of husbands, wives, and children as “blood relations,” the new laws speak of “persons,” “legal parents,” and “legal parent-child relationships.”

In other words, in the old system, the state presumed the existence of a substantive, natural reality that required legal adumbration: the union of a man and a woman, and the children resulting from their sexual relations. Now the Canadian government sees that it must intervene and redefine marriage and parenthood in order to give fixed legal standing to otherwise fluid and uncertain social relations. When the gay friend donates his sperm to the surrogate mother hired by a lesbian couple, the resulting “family” is a purely legal construct, one that requires the power of state to enforce contracts and attach children to adoptive parents.

The result is the opposite of the libertarian dream of freedom. As Farrow observes, with gay marriage we are giving over the family to the state to define according to the needs of the moment. The upshot, he worries, will be a dangerous increase in the power of the state to define our lives in other realms once thought sacrosanct. “Remove religiously motivated restrictions on marriage,” he writes, “and it is much easier to remove religiously motivated restrictions on human behavior in general, and on the state’s power to order human society as it sees fit.” The libertarian dream turns into the totalitarian nightmare. Who can or cannot be a spouse? That’s for the state to decide. To whom do children belong? It’s up to the state to assign parents as its social workers and judges think best.

Plato’s plan of taking children from their parents so that the state can control their socialization has few contemporary proponents. (There are, however, many fellow travelers in the educational establishment and so-called helping professions.) Nonetheless, I think we can see the tyranny of the political in our times. Much like the current abortion regime and the slavery jurisprudence of the antebellum era, proponents of gay marriage imagine that they can redefine inconvenient, permanent realities and remove traditional barriers to the relentless human desire to get what we want. The idea that “bride” and “groom” are not gender specific is a current sign of the absolute triumph of the political will. When we accept that judges and legislators possess the power to define the meaning of marriage, then it’s hard to imagine what would limit the state’s power to redefine social reality other than “personal autonomy,” which turns out to be no limit at all, since everything is desired by somebody somewhere. For all we know, Leona Helmsley wanted to marry her dog.

In short, Farrow is concerned that our present culture of tolerance is quite capable of laying the foundations for the politicization of culture. It seems counterintuitive, but the worry has been central to modern conservatism. Edmund Burke saw that revolution motivated by the unattainable ideal of equality would destroy the deep, pre-political social mores that restrain the will, including the political will; and this restraint is essential for the preservation of liberty. Our contemporary cult of tolerance differs from older fantasies of equality, but the notion that we can accommodate everybody’s desires is just as unrealistic.

Of course, we don’t actually accommodate—and we can’t. As we deconstruct social norms for personal life (and sexual relations are just part of this process), other, more violent and crueler forces take their place. Thus our current situation: a raw system of economic reward and punishment keeps most moving in a socially productive direction, with therapeutic professionals to help manage the occasional dysfunctions. For the rest we have well-armed police forces, prisons, and court-administered “family law.” This shouldn’t surprise us. Human beings cannot live together without a felt force of restraint. What should worry us is the migration of that force outward and into the hands of political actors.

In my experience, most conservatives see the genuine moral importance of tolerance in a free, pluralistic society. But the opposite is not true. Liberals and self-styled progressives are often arrogantly and culpably blind to the importance of settled social mores for a liberal society. They are a counterweight to the political will, which has sought omnipotence in the modern era because it has fancied itself omni-competent.

Maybe we can have gay marriage, even polygamy, and retain a felt sense of social restraint based on some sort of shared sexual mores—an ethic of “sincere commitment” or something of that sort. Yet, as Douglas Farrow points out, from Rousseau to the present, the left has sought to use the power of the state to destroy the influence of traditional norms for marriage and family. In so doing, the left imagines itself expanding the scope of freedom for all. It seems all gain and no loss. In California, homosexuals can get married, and nobody is prohibiting heterosexual marriage. Everybody seems to be getting what he or she wants. But what seems is not necessarily so. When the state can rise up to redefine marriage, then the counterweight of tradition is diminished, the political instruments of power are emboldened, and our collective liberty is at peril.

R.R. Reno is features editor for First Things and professor of theology at Creighton University in Omaha, Nebraska.