On the state of marriage, the original modern sanctuary jurisdiction

February 7-14 is observed this year as National Marriage Week, intended to promote awareness and appreciation of the institution of marriage. The effort seems particularly timely, given the decline in people getting married (and having children) and marriage’s competition with other forms of “relationship” more or less permanent.

One need not be particularly prescient to recognize that marriage in contemporary Western societies is on the ropes. The question is why. One answer may be the idea that marriage was the original sanctuary jurisdiction.

When he ushered in a new “reform” Criminal Code in 1967, then-Canadian Justice and later Prime Minister Pierre Trudeau opined that “there’s no place for the state in the bedrooms of the nation.” According to Trudeau, “contemporary society” needed to eliminate the “totems” and “taboos” he deemed restrictions on abortion and homosexual activity represented.

Trudeau’s dictum embodied liberal ideas of the times about the undesirability of civil law protecting and privileging marriage and procreation against the individual lifestyle libertinism increasingly ascendant in the late 1960s and early 1970s. The American counterpart to Trudeau’s bedroom sanctuary policy was Roe v. Wade, which, at its apogee, likewise insisted the state in practice had no “interest” in “potential life” in the womb.

The logic behind these exclusions of social norms from marriage and procreation was precisely the idea that there could be no social norms about them. Good liberal democrats, particularly in the Rawlsian tradition, could not impose a normative or objective concept of the good on an individual’s subjective ones. “Let a thousand forms of good bloom” pretended that human liberty would live long and prosper when cultivated in diverse and variegated forms.

What instead happened was a peculiar blend of the iron law of noncontradiction with Gresham’s Law: if incompatible forms of marriage are all on offer as equally good, the subjective will drive out the objective, the easier will push aside the demanding. If real marriage, partnerships, concubinage, common law marriage, “pre-ceremonial intercourse,” one-night stands, and hook-ups are all on offer with the law in practice indifferent about them, then de gustibus non disputandum. But don’t be surprised when real marriage suffers.

The bizarre part is that this all happened in countries that, at the time, were still coasting on Protestant gases. I would argue, however, that it is precisely because these countries were Protestant that the evisceration of the content and characteristics of marriage could take place.

Classical Protestant theology, with its sola Scriptura obsessions and nominalist intellectual foundation, denied the sacramentality of marriage. Marriage was an “estate” regulating one’s civil situation; it had nothing inherently to do with salvation. It might be “holy” in the sense of obedience to God’s ordering of temporal human affairs, but it had no intrinsic significance (other than the test of obedience) beyond this world.

If marriage is not part of the sacramental order, it becomes part of the temporal order, which means it becomes a matter of state, not ecclesiastical control. And that is just what the classical Protestant Reformers recommended and accomplished. The early Protestant rulers who buttressed the Protestant Reformers inherited an understanding of marriage that they at least thought was God’s design for that “estate.” But here’s where nominalism enters the picture.

Nominalism asserted that creation is the result of the omnipotent divine will: God made the world as He willed it, but could have made it otherwise. The commandments, then, are essentially arbitrary: an all-powerful God could have made them the exact opposite. He just didn’t. This is, of course, at variance with a classical Catholic metaphysic, which recognizes that God–even an all-powerful God–cannot make a world at odds with Himself. A God who is Life cannot create a moral order in which killing is good. A God who is Truth cannot create a world in which lying is allowed.

Nominalism essentially reduces reality to labels attached by an all-powerful God. It accustoms people to thinking that reality (like marriage) has no inherent meanings, just characteristics that are the result of external forces, be they God, socio-cultural conditioning, tradition, or whatever. Nominalism works as long as people actually believe in God as the one who affixes the labels. But when men lose their faith in God (as in the view the Enlightenment ushered in), who is going to attach the labels? The likely candidate is men who want to play God, men who still think reality is inherently meaningless, and look for somebody to attach labels.

If marriage, which the Protestant Reformers moved from state to church control, is now increasingly separated from God’s commands, then it will be up to men to decide what characteristics belong to marriage. An English king who did not necessarily like his wife du jour could do without indissolubility. A primary-schooled farmer from northern New York could decide some archangel gave him a “revelation” about the value of polygamy. A group of Protestant clergy (later abetted by Catholics) might decide that marriage and openness to procreation did not necessarily go together.

And once that principle is gone, Biblical “scholars” imbibing “higher criticism” could then conclude that even sexual differentiation is irrelevant to marriage. And it’s all “legitimate” because the law–once God’s but now man’s–sanctions it.

Marriage progressively has deteriorated from a shared common understanding deriving from God’s design for the institution to a highly individualistic idea that, as long as the individual calls it marriage, society is eventually expected to sanction it amidst a “diversity” of views. A paradoxical situation is created: “marriage” is declared a social institution that society sanctions and nominally promotes, but there is no common social understanding of what marriage is. If–contrary to the Catholic view–marriage essentially remains two individuals who do not finally and indissolubly become one, then are we surprised that our idea of “society” also is progressively losing a communal character, reducing itself to an aggregate of individuals whose interests are at best coordinated but rarely common?

Arguably, one can claim that the privatization of marriage has been one of the prime engines in the atomization of what we still call “society.” If marriage is justified by callow appeals to “love is love”–with love being whatever somebody says it is at a given moment–then marriage has little to no social content or meaning. The “common good” is then redefined as whatever individuals want. And a “democratic society” protects those wants, so that the government must “stay out of the bedroom.”

“Staying out of the bedroom” has meant removing any social and moral consensus about what marriage is and requires. Defenders of this “sanctuary” model of marriage claim that “as long as it doesn’t hurt anybody, we should not interfere with individual choices.”

But does the record of the past 60 years–the era since the Sexual Revolution of the 1960s–bear out the claim nobody’s been hurt by the Rawlsian model of no public morality interfering with lifestyle choices? The situation of spouses suggests otherwise. Society’s failure to reprobate adultery by defending marriage has led to divorce regimes whose protection of marriage is less robust than your mortgage obligations. Society’s failure to condemn fornication has led to single parents (primarily single mothers) living in poor economic situations and usually on the public dole. Society’s failure to recognize the mutual partnership of persons in the creation of life has led to the bizarre model, sanctioned after Roe and curiously unchallenged by states in the post-Dobbs era, that fathers have no say in life or death decisions about their unborn child.

More importantly, our “victimless” approach to marriage, in which a “sanctuary” mentality excludes social and moral consensus, victimizes children. Numerous studies show how children fail to thrive–socially, intellectually, economically–when deprived of marriage. The more basic rights issue, which society eschews, is that a child has a right to a mother and a father to whom he is biologically related. Once a couple agrees to engage in sexual intercourse–an act that has the potential of giving life–they assume obligations towards the child who may come from that act. Our society’s failure to do so, its claim that there is no entitlement right on the part of the child vis-à-vis his parents, is at the heart of the current marital/parental crisis.

Instead, we continue to labor under a false anthropology that considers parenthood merely an “individual choice” (which, however, cannot happen through but one individual) about which no one else has a right to opine. It is precisely this distorted anthropology that fuels so much of modernity’s problems.

Finally, a major flaw in modern approaches to marriage and family is the idea that society as a community can have no views on the matter. This “hands-off” approach to the “privacy” of family decisions is alien to most of human culture. It is certainly alien to Catholic thought and even to the Protestant ideas that fueled much of the American founding. Society rests on the family. Society exists because of the family. Because anything that exists has a legitimate interest in its continued existence and perpetuation, the idea that marriage and family are somehow excluded from social consensus is irrational.

Yet this is the reason why, despite all the evidence that the policies with which moderns have surrounded marriage and parenthood are imploding, we continue to cling to them and refuse to change. Part of the problem is the commitment of no small part of the political establishment that denies there can be a normative vision of marriage and family. Part of the problem is the fear of “alienating” some constituency. Part of the problem is the refusal to define terms like “marriage” and “parenthood.”

Until we arrive at some degree of social clarity on these matters, we will continue to experience social decline while wringing our hands, pretending we do not know how to address the situation. That claim will be buttressed by the “diversity” and “pluralism” crowd that will claim society cannot “democratically” support, endorse, and subsidize genuine notions of marriage and family, even though they are based on natural law and not just religious doctrines.

And so, to borrow Robert Bork’s phrase, we will continue “slouching towards Gomorrah” while merely talking about the need for an effective marriage and family policy that rescues our society. We will, however, never have it as long as we treat marriage and family as the first “sanctuary” space free law: at first moral, and then reflected in the political.

Read original article