Lecture 11: Liberty and Marriage

Classical Liberalism

A Lecture Series with Prof. Thomas Patrick Burke

This lecture is in two parts. The first part is concerned with the foundations of marriage, the second with current discussions of it.

I. The Foundations of Marriage

1. Why are there two sexes?

They are not indispensable to life as such, for some forms of life do not have them. According to Darwinian theory sexual difference must confer on the species some advantage in the struggle for existence. But what is that advantage? Many biologists consider this a mystery. Darwin’s own answer was that sexual differentiation is more productive, it “gives vigour and fertility to the offspring,” “on the principle of the division of labour.”  (Origin, Ch.4)

Darwin had learnt the importance of the division of labor, or specialization, from Adam Smith.  Smith devotes to it the very first chapter of his Wealth of Nations. It is, he says, the secret of productivity.  As an explanation of its immense productive power he gives the example of a pin factory which employed ten men. One man working by himself might have trouble making even one pin in a day, he observed. But in that factory the ten men produced, simply by dividing the labor up into ten specialized stages, some 48,000 pins in a day, or 4,800 per man. This kind of increase in productivity, Darwin suggested, is a key idea in understanding why there are two sexes.

Some lower species of life, especially bacteria and plants, clone themselves, some fertilize themselves. But since the advantages of the division of labor are a permanent truth,  if human beings wish to have “vigour and fertility” as a species, we should still count on coming together as man and woman, whatever advances science may make in the future.

2. The uniqueness of life

For Darwin, the differences between the sexes, like all the other features of living beings, are ultimately entirely a product of chance, of the haphazard process of the struggle for existence and the survival of the fittest. But in earlier chapters in this series we pointed to another possibility which is suggested by our experience of living beings. It was summed up in Plato’s observation that living things have the power to change themselves. They do not have to wait upon the chance of circumstance. Living beings are organic and teleological.  They are organized according to a plan. Different parts of them, organs, fulfill different purposes. Especially, they have a different kind of causality from inanimate rocks.  The causality of life is not unidirectional, like inanimate causality, but reciprocal.  The roots of the tree cause the leaves, and the leaves cause the roots. So the tree grows, creating itself. It can even create a new tree. Some things are good for trees and others bad, which is not true of rocks. Darwin omitted to mention all this.  If this teleological viewpoint is true, the roots of the two sexes go deeper than he thought, into the heart of life itself, since it is by their means that life chiefly creates itself.

3. Meaning

But human life is more than biology, marvellous though biology is. Human beings have the ability to transform their biological needs into sources of meaning. Eating is a biological necessity, but we elevate it into a source of meaning by having dinner with our friends. Clothing is originally merely something we need for protection, but we make it into a bearer of social meaning which can distinguish a pope from a policeman. Dying is unavoidable, but we do not turn away and pretend it did not happen: we hold a funeral service and mourn; and then often eat and drink together.

The ceremony of marriage was created to lift up the biological union of man and woman, and their subsequent sharing of their lives together, into a realm where it is something more and higher. The union of man and woman is in itself a wondrous and creative thing, precisely because of their difference; it has about it something of a cosmic force. The ancient Chinese recognized this in their, admittedly vague, conception of the Yin and the Yang, whose creative union vitalizes the universe.  The emergence of a new child into the world is a fact of cosmic significance and is a fitting outcome of that union.

The ceremony of marriage was not created in order to celebrate the private love of two men or of two women for one another. Homosexual love may be very real for the individuals themselves, but it is never more than something private. It is of no significance for society as such, for nothing follows from it. Marriage was created because the union of a man and a woman is the creative foundation from which new human life and society itself emerge.  Genuine marriage, it has always been recognized, is therefore not a private act but a social act, and the highest of such acts. It is rightly considered a sacrament, the outward sign of a great interior grace.

II. Marriage, Justice and Liberty

In a previous chapter we saw how every institution in our society has been to some extent damaged, destabilized and undermined by the imposition of “social justice” and its gospel of societal equality. This began with the legislation of the New Deal in the 1930s, but has greatly expanded since the Civil Rights Act of 1964, Title VII, and other pieces of legislation which prohibit peaceful discrimination. Since that date, we saw, every institution must serve two masters: in addition to the purpose for which it was created, it must also serve to increase societal equality.  Schools were created to teach children, for example, but now that is not enough; they must also contribute to equality in society, by their hiring practices, by their curriculum, by social promotion, by the kinds of students they accept, by their discipline or lack of it, by their sports programs, and so on.  This is true of our churches, our universities, our banks and all our businesses, our hospitals, our police, our army, navy and air force, our astronauts, and the very language that we speak. All have been coopted to serve the great god Societal Equality.  It is also true of the institution of marriage.

From the most ancient records we possess, marriage has meant a solemn agreement to share one’s life with a member of the opposite sex. But, as you will recall, the Civil Rights Act of 1964 prohibited not only coercive discrimination on the ground of race, such as segregation,  its original purpose, but also peaceful discrimination on the ground of sex. This provision was added as an amendment to the bill by Howard Smith, chairman of the House Rules Committee, not for the reason you might imagine, but because (according to the plausible testimony of a Congressional colleague) he was adamantly opposed to the original bill and wanted to sink it.  He believed that with this amendment attached to it nobody would vote for it.  But as it turned out, his judgement proved slightly faulty. His amendment has had just the opposite effect from what he intended.

Initially it was understood to rule out only discrimination by men against women. But now it is widely considered to exclude discrimination by heterosexuals against homosexuals. Laws that require the state to recognize only traditional heterosexual marriage as valid are now accused of being discriminatory. As everybody knows, the legislature of New York State has recently declared homosexual marriage legitimate.

Homosexual marriage is now demanded in two very different names, that of equality and that of liberty. It is demanded by those of left-wing opinions in the name of equality; but by libertarians, often classified as right-wing, in the name of liberty.  Let us examine this last first.

1.  What kind of liberty is furthered by supporting homosexual marriage? 

Liberty can be understood in two very different senses.  In one of these, it means freedom from coercion, in the other, freedom from limitation.  Coercion is the use of force or the threat of force.  It is a restriction of liberty that can only be inflicted by the will of another person. The use of force by another person directly overrides and tramples on the natural freedom of the human will, which, as we saw earlier, is the foundation of the moral order. The use of coercion on a sane, conscious adult without sufficient justification is therefore by its nature a punishable crime.

The interior freedom of the will, which consists in the absence of causal predetermination, is a form of freedom from coercion. Both predetermination and coercion eliminate the creative initiative by which a free individual brings a new action into the world.

Does the traditional rejection of homosexual marriage by the state involve coercion? No. The state simply does not accord such a ceremony the special recognition and benefits it gives to genuine or heterosexual marriage. Nobody is fined, jailed, executed or otherwise penalized by the law in America for going through a ceremony of “marriage” with a member of the same sex. The law passed in New York State did not free anybody from coercion.

It is true there is a law. And laws are typically coercive.  But that is not true of this law, which states only that certain marriages enjoy certain benefits. This is not coercion. It leads some, however, laboring under a misapprehension, to advocate abolishing all law regarding marriage.  Marriage, they say, should be taken entirely out of the hands of government. But that overlooks the fact that marriage is a contract. Every contract falls under the scope of government because every contract creates rights and duties that can rightly be enforced by coercion.  The contract of marriage leads the two spouses to rely mutually on one another in many ways for the shaping of the entire rest of their lives. Each is injured if the other does not live up to his or her promise.

The mere refusal to give homosexual unions the name of “marriage” is certainly not coercion. What are they being coerced to do? Civil unions, which we do not argue against, can give them many of the traditional benefits of marriage. No doubt some will say that the refusal to recognize homosexual marriage already “punishes” homosexuals.  But this is not punishment in any ordinary sense, any more than the state’s refusal to give a physician’s license to those who have not studied medicine constitutes a punishment.

Freedom from limitation

The other kind of liberty is freedom from limitation.  This has to do with one’s ability to accomplish some purpose. If I wish to fly to Mongolia but do not have the financial means to buy a ticket, some people will say I am “not free” to fly to Mongolia. But this “lack of freedom” is very different from coercion. It does not use force on me, nor does it threaten to do that. I simply lack a means that is necessary to achieve my end. It would be more appropriate to describe this situation in terms of ability and inability: I am not able to fly to Mongolia. I do not have the necessary wherewithal. The moral implications of this are altogether different from those of liberty from coercion. Whereas coercion can only be inflicted by another person, limitations can be inflicted by nature, or merely by accident.

Libertarian liberty

Now, as remarked above, the people who demand homosexual marriage on the ground of liberty are typically libertarians. But the sense of liberty for which they demand it is not the libertarian sense. When libertarians are talking about any other subject, what they mean by liberty is invariably liberty from coercion.  This is why libertarians oppose unnecessary laws, because laws inflict coercion. It is why they support free markets — a free market being one that where there is no coercion beyond the requirements of justice. If liberty from limitation is all that libertarians are fighting for, they may as well give their struggle up. Almost everyone desires to reduce the limitations they are under. There is no need for a special political movement dedicated to freeing people from limitations. A libertarian who demands homosexual marriage on the ground of liberty is deeply confused.

The liberty at stake in homosexual marriage is not genuine liberty, freedom from coercion, but merely freedom from limitation. What is at issue is not libertarian liberty but a certain kind of equality.

Before we turn our attention to the question of equality, however, there are two other questions it will repay us to consider.

2. In what sense is homosexual marriage even possible?

The core of marriage is the sexual act. Whatever else marriage might be, it confers the right to perform the sexual act with this particular person. And the right presupposes the power to perform the act. A person who was known to be physically incapable of performing the sexual act was always considered incapable of getting married. If it was discovered after the marriage ceremony that one of the pair was incapable of performing the sexual act, that was always accepted as sufficient ground for annulment of the marriage. The ceremony was never considered enough by itself to create a marriage. This always had to be “consummated” by the performance of the sexual act.

The sexual act is performed through the physical union of the partners by means of the union of their sexual organs. Now a male sexual organ and a female sexual organ can obviously be united in this way. They fit together anatomically. They are clearly designed to fit together.  It is rather clearly not a mere accident. And they fit together functionally, since their union can produce the astonishing effect which is a child. But this union can take place only through the union of male and female organs. Two male sex organs cannot possibly fit together. Nor can two female sex organs. In case it has escaped anyone, the achievement is physically impossible.

Sodomy is not the sexual act. It is not sexual intercourse. While one male uses his sexual organ, the other does not. Two males or two females can perform mutual masturbation.  But masturbation is not the sexual act. The sexual act is not a solitary act, but an action of two people together by means of the union of their sexual organs. In order to masturbate it is not necessary to have a partner. Even if two people perform mutual masturbation, that is not the sexual act. Mutual masturbation consists of two actions done by two people. It need have relatively little in the way of emotional implications for the future of their relationship. But when a man and a woman perform the sexual act, the one single joint action can create ecstasy for both. For this reason the sexual act just by itself tends to establish a deep emotional bond between the two persons, a lasting bodily love, unless that is shunted aside by some other intention. I leave aside the unique electricity that even the touch of a hand of the opposite sex can spark.

While two homosexuals can go through a marriage ceremony, they are physically incapable of performing the marriage act together. Although there may be a deep friendship and even love between them, the reality of marriage itself is beyond their capability as a couple.

We are told that marriage is a basic right of all human beings, and that the ban on homosexual marriage is like the earlier ban on mixed-race marriages. But there cannot be a right to something which is inherently physically impossible.  Also, few people believe that mothers should have the right to marry their sons or fathers their daughters. And the case of mixed-race marriage between a man and a woman is precisely the opposite of what we are talking about.

Homosexual “marriage” is therefore not marriage at all, but only a fake or pseudo-marriage.

3. The question is often raised by friends who wish homosexuals to enjoy the happiness marriage can provide: What harm does it do? Why not just leave them alone? How are heterosexuals injured by homosexual marriage? Isn’t it rather none of their business?

But this is a mistake. It is very much their business. Consider, for an example, the Medal of Honor. This is awarded only to people who have shown extreme courage in battle, “conspicuous gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States.” Imagine now that the U.S. government decides to award it to everyone who has served in the military, battle or no. It is true that those who possess it still possess it. They are not robbed of the physical medal.  But its meaning would be lost, and so would its value. Now it is a high honor: then it would be nothing special. A similar event occurs in the commercial world when a firm dilutes its shares. If a company has issued a thousand shares in its assets, and you have bought one of those shares, and then the firm issues another thousand, while you have not been precisely robbed, your share has lost half its value. A similar kind of thing happens when the federal government increases the money supply by printing more paper dollars without corresponding production to back them up. You do not lose the notes in your pocket, but you will lose their purchasing power, which was your only reason for wanting them.  Extending the word “marriage,” which has hitherto signified for the majority of people the most important single action in their lives, and for society the foundation that literally gives it birth, from the case where it rightly applies to a union of homosexuals where it cannot apply except by tying our conceptuality in knots, is a blow to the cause of humanity.

4. What kind of equality is furthered by allowing homosexual marriage?

This is not the equal dignity of all human beings, their equality before God or the law, or even the equality of citizens that all Americans have. It is the equality of social power demanded by “social justice.”  Social justice is very different from ordinary justice. Ordinary justice asks how an individual ought to treat other individuals. It answers that people should be treated as they deserve. The question social justice asks instead is: how should power be distributed in society?

Its answer to this question is that power should be distributed equally. This parades as an ethical statement, but in actuality has little to do with ethics. Ethics is concerned with actions. An ethical judgement is a judgement passed on an action; that is, on a will. An ethical quality is always a quality of a will. But equality or inequality of power in society is not a quality of any will. It is merely a state of affairs which can exist purely by accident, without any reference to a will at all. The Supreme Court recognized this in 1971 in creating the concept of “disparate impact,” which states that it is possible to be guilty of discrimination even though there was no intention to discriminate, if one’s actions merely have the consequence of creating inequality.

The demand for social justice, far from being a demand for ethics, is on the contrary rather a demand for the rejection of ethics.  Instead of honoring the basic rule of justice Thou shalt not steal, it demands “redistribution.”  Social justice is not justice at all, but only pseudo-justice.

Social justice is not only the great opponent of ethics in our day, it is also the great opponent of liberty.  Nine-tenths of the artificial regulations imposed on the market by government since the Second World War are the work of social justice and its demand for “fairness.” To approve of social justice is to approve of all the laws and regulations of the New Deal, and also all the laws and regulations that follow from political correctness and the prohibition of peaceful discrimination. It is to be oblivious to the differences between ordinary justice and social justice. But to approve of homosexual marriage is to approve of social justice.

For a libertarian, of all people, to embrace social justice and its gospel of economic equality is to betray his own best insights. It renders him henceforth incapable of finding fault coherently with any other restriction imposed on the market in the name of fairness. It is to give libertarianism up as a philosophy.

5. True Marriage and Liberty

A true marriage, a voluntary lifelong union with a member of the opposite sex, is a unique event, and if successful a uniquely marvellous one. There is something we can receive from a member of the opposite sex that members of our own sex cannot give us, no matter how intense the relationship may be. That something is, on one level, a deep personal affirmation or confirmation of one’s intrinsic worth as this unique individual that we are.  But it goes beyond the merely psychological to open up a giant new interior dimension of reality.  The person who is in love and is loved in return lives in a larger and richer universe, and his or her self itself becomes larger and richer.  The happiness of a happy marriage is something that goes to the depths of the self.

No doubt it is true that some marriages fail. But the magnitude of the failure, which is usually cataclysmic for at least one of the partners, is also a measure of the magnitude of the success, when there is success. As Aristotle said, the corruption of the best is the worst.

One of its qualities when successful is a constant newness. The other sex is human like ourselves, yet a lasting source of discovery and surprise. How could a human being be so different from ourselves, while being so similar!  Sometimes this surprise is irksome. But at bottom it is immensely attractive.

This unique value of marriage comes from the value of commitment. That is, it comes from the will that each person gives to the other, and from the freedom of that will. Only a voluntary marriage deserves the name of marriage at all.  Yet marriage is not something merely that the two individuals create for themselves. Marriage is an institution.  It is an institution we inherit, and one that we take on ourselves as a package.  It is of the essence of that package that it should be for life. Everybody recognizes this. That is why nobody even attempts to get married for a determinate time, say five years, which in all other contracts is common.

The enjoyment of peace in civil society depends upon the existence of a hard boundary of coercive enforcement.  Paradoxically, only because we are willing to exert force on those who injure others can there be a sphere of life without force. Similarly, the enjoyment of marriage as an institution depends on a hard boundary of enforcement: the refusal of society to provide easy dissolution.  Since some marriages fail, there must be divorce. Yet divorce should not be easy.  Paradoxically, only if divorce is difficult can marriage itself rest secure and easy. Some things become possible only when they become necessary.