Things To Act
Thursday, March 04, 2004
 
Family--Doctrine meets Politics
[Note: the following post should probably be read before this one]

With questions of our beliefs about the family addressed, the next issue is how those beliefs interrelate with our beliefs about government. Most of the scriptures here are less helpful, because, despite some comments about political theory (such as Mosiah 29), most of the scriptural record deals with societies which were much more homogenous and theocratic than ours is. The beliefs of Israelites or Nephites about government don’t parallel our current situation well (though I do like the principle, expressed in Alma 1:17, “the law could have no power on any man for his belief”). I don’t think, therefore, that most of the scriptural record can give us detailed guidance in our responsibilities as citizens, though it can help with general principles.

There is one notable exception to this trend, however. D&C 134 was canonized in our dispensation. Though one could split hairs about the difference between the antebellum frontier and the modern results of the American experiment, D&C 134 does provide some fairly solid principles for how we should look at government. Points relevant to this discussion include:

*Verse 1: Government can be good. Hence, extreme libertarianism/anarchism has problems in our theology. Also, God will hold us accountable for our actions toward government (including failed attempts to influence public policy, if they need to be tried), not only dealing with the laws we pass, but also our implementation of them.

*Verse 4: Religious opinions should not lead us to curtain the freedoms of others. Further, no law should attempt to control belief or conscience.

*Verse 5: Sedition and rebellion are not appropriate as long as the government is protecting our fundamental rights. Also, the government has the power to enact laws that it believes will serve the public interest.

The paradox of same-sex marriage is that as long as the policy debate is framed in terms of fairness/equity, attempts to deny same-sex couples the same benefits given to married couples will seem ‘unfair.’ Further, people will argue that those opposed to same-sex marriage/unions will be justifying their unfairness based on their religious beliefs, an unjustifiable use of government.

However, I believe this frame is most likely a flawed way to analyze the issue. Rather, we should look at family law as being part of the body of law enacted to serve the public interest. If the public interest is best served through promoting heterosexual marriage (while not penalizing those who choose other lifestyles), then such laws are justified (just as many laws can be justified, though they may seem arbitrary or unfair to those who do not buy the legislature’s reasoning).

Below, we defined marriage and parent/child relationships in terms of key scriptural injunctions. Let’s look at how the law should relate to each of those.

Marriage:

Marriage is strongly encouraged in the scriptures. It thus may be appropriate to enact laws which indirectly encourage marriage, though overt coercion should certainly be avoided. I don’t particularly have a problem with the law structured in such a way that marriage is assumed to be the ideal outcome for all individuals, and significant incentives exist to encourage all to get married (without penalizing those who don’t want to). I can also see a more laissez-faire approach in this area, though [I once had a longish discussion with a libertarian fellow student who thought that any such incentivization by the government was immoral. While I’m somewhat sympathetic to that view, its logical implication would exclude most of our current body of law, particularly in the economic sphere where we encourage and discourage all sorts of behavior through taxation and exemption—so the majority of the country is clearly comfortable with a non-libertarian approach to government incentives].

We also consider marriage to be necessary. Here, I think, is an inappropriate sphere for the law. We can certainly teach as a private organization that everyone ought to be married, but using the government in this endeavor would, I think, be inappropriate. Government shouldn’t go farther than mild encouragement.

Marriage should be marked by love between spouses. I’m not sure that there are any immediate public policy implications here, except perhaps that we should reserve the concept of marriage for unions marked by genuine love, and not the sort of informal civil-union style arrangements between two nonintimate adults that some predict will be inevitable under any civil union scheme.

Divorce is strongly discouraged. It does seem appropriate for a state to strongly discourage divorce. I am quite sympathetic to the argument that no-fault divorce liberalization has caused an immense amount of harm to our society. I (and a significant number of my generational cohorts, if BYU’s family life professors are to be believed) would support making divorce harder. This is not to say that we should ignore the types of problems that can exist in a marriage that would make divorce necessary, of course. An idealized view of an earlier era is useless if we don’t address the problems of that era as well. However, the current disaster is hardly the only other option.

Intergender marriage is necessary. And here we are at the crux of the dilemma. We believe, for religious reasons, that only male-female pairings are truly marriage. In the absence of hard social science data supporting this assertion, it’s hard to convince those who don’t already believe it. Of course, we don’t have the hard social science data that same-gender couples are as effective either. Theoretically, we would need a powerful argument to justify leaving the status quo. However, that argument is being fought in terms of equity (and, as I point out below, the status quo is in flux anyway).
The other argument for intergender marriage deals with reproduction—the vast majority of births come from heterosexual couples. If we structure the law to promote reproduction, giving heterosexual couples precedence may be justified—but under the logic, same-sex couples who want to adopt or reproduce through other means (AI, etc) may have to be included, barring the aforementioned social science evidence.

One purpose of marriage is to bring children into the world; mankind is under a commandment to do so. Most of the arguments for traditional marriage seem to revolve around this point. This argument can be problematic, though, as even we believe that there’s more to marriage than just reproduction (or why would we care if couples stay married past menopause?), and even that there’s more to sex than reproduction (ditto). At a minimum, if we define marriage solely in terms of child rearing, we face the problem of excluding heterosexual couples with no interest in bearing children.

Gender roles: specific responsibilities in marriage are set forth, particularly that men are responsible to provide for their families. And on this point, feminism has led to a diversity of opinions. The main public policy implications seem to warrant legally requiring a man to support his dependents (particularly after a divorce). Applying the principle outside of marriage could help stem the current tide of fatherlessness and single mothers plaguing society.

Child/Parent:

Honoring and obeying are the main focus of the scriptural responsibilities of a child toward his parents. While ‘honor’ is all but impossible to legislate, obedience relates to public policy in the degree of autonomy parents have to raise their children without undue interference from the state. It seems reasonable to expect parents to have control over their children’s moral education, for instance.

Parent/Child:

Provide—see ‘gender roles’ above.

Defend—I’m not sure we’ve got a lot of direct public policy implications here; this seems to be past of the point of intrastate concern, and more at the point where some other state is threatening everyone. In a spiritual sense, we should fight against anti-family forces, but that’s more meta- than specific to this point.

Praying—not an appropriate sphere for governmental intervention.

Fulfill Responsibilities—again, see above. The law would seem to have a strong role in holding individuals responsible for their dependents.

Teaching—in terms of moral education, it doesn’t seem an appropriate place for governmental intervention. Government should probably make provisions for an adequate secular education for all (again, staunch libertarians might disagree).

Nonscriptural roles of family law

Family law affects other things not mentioned in the scriptures (or, if they are mentioned, are cultural mores not followed by us today—for instance the automatic assumption that the firstborn inherits everything, or the requirement for a man to marry his brother’s childless widow). Some of these things include:

Inheritance
Medical issues (visitation, right to make decisions for the incapacitated, etc)
Court testimony (spouses don’t have to testify against each other, traditionally)
Extension of benefits (under various governmental as well as private plans)
Nepotism laws
And others that I’m probably not thinking of right now [Readers?].

Politics

Often, the ssm/cu debate is framed in terms of these other ‘legal incidents,’ and most reasonable people don’t see why some or all of these benefits shouldn’t be extended beyond traditional marriage. This argument will obviously have to be addressed in any policy outcome. However, I’m not convinced that the heart of the disagreement is here. Regardless of what happens to ‘marriage,’ in the United States, I suspect that both ‘sides’ may really be more concerned with broader issues.

The pro-ssm side (or the “normalization” camp) seems to me to be pushing for full social acceptance. Rather than merely seeking legal equality (or some approximation thereof), this camp seems to be pushing for social, or at least governmental, acknowledgment of homosexuality as an acceptable lifestyle. I suspect that many in that camp will not be satisfied with anything less. Hence the current movement to force ‘marriage’ instead of any ‘separate but equal’ scheme. Disputes over adoption, child-rearing, etc, will follow, and the exact role of the state in teaching about sexuality (particularly in elementary schools) may develop into a nasty battleground.

The anti-ssm side (or the “traditionalist” camp) seems to be pushing against full social acceptance, or at least against any governmental recognition of the homosexual lifestyle. I suspect that many in this camp wouldn’t mind if some or all of the legal incidents of marriage itself were extended to same-sex couples—but they see attempts to manipulate the state into acknowledging such unions as the equal of marriage to be illegitimate, and they view the potential long-term effects in the abovementioned areas to be worth fighting against.

Solutions?

I don’t know that I’m any closer to deciding on an ideal solution. However, here are some possibilities I can think of:

*FMA: If the FMA is passed, no state will be able to call same-sex unions ‘marriages.’ However, states will be free to enact the legal equivalents by any other name, and some will (Oregon, at least, looks to be moving in that direction). States won’t have to recognize marriages from other states, and should (theoretically) be free from judicial manipulation within the state. The long-term trend suggests that more states would be more accommodating of civil unions as time passes. Many of the battles over childrearing would be just as contentious, I suspect, at least in the pro-civil union states.

*Other amendments: Some other amendments have been proposed, including highly improbable ‘ban-everything’ types (which won’t pass), and more narrowly tailored ‘let the states decide, but don’t impose a marriage definition’ types (Interestingly, Senator Hatch is proposing such an amendment: “Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman”). I think the Hatch amendment may be the best amendment strategy, as anything that reaches farther will meet with much greater opposition. That would still leave the issue to the states, which could do one of several things.

For simplicity’s sake, we’ll confine analysis to one state for now, though interstate problems would certainly crop up under any federalist scheme.

*Normalization victory. Same-sex marriage could be recognized, all the way. Many LDS would likely be uncomfortable in such a society. Of course, we’re already uncomfortable with many aspects of current society, so I don’t think the world would end over it.

*Libertarian triumph. We could, as many people propose, get the government out of the marriage business entirely. Easy to say, more difficult to do. We still would have to deal with all those pesky ‘legal incidents,’ either eliminating them or setting up other criteria to make them available. The fight over the definition of marriage would move the broader culture. We would lose the ability to regulate any types of sexual relations between consenting adults, including polygamy and incest (I’m actually not convinced that’s such a bad thing, but that’s a different story). And, of course, all of the adoption/childrearing issues would still be on the table.

*Status quo. Ho hum. Seems likely that cultural pressures would push any state that tried to tread water one way or the other after a while. Some sort of vision is necessary, as the status quo is broken to just about everyone.

*Traditionalist reversal. A state could restructure its family laws to make them more traditional-family friendly. As long as secular justifications are used for each step, this shouldn’t be too difficult. It would take a broad public consensus, which makes me suspect that it would only work in some Red states (such as Utah) (however, once that consensus was in place, a self-selection effect could keep it going—individuals who didn’t like the preferred position of the traditional family would move to other states, and those in other states who liked the idea would move to the state trying it, preserving legislative majorities). I have ideas about details on this point, but I think I’ll mull them over some more before posting them, particularly since it’s getting entirely too late.

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